Nv Aclu Parole Report
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MAP-22-2006 14:23 From: To:8022571342 P.2/20 A Look at Parole in Nevada and in the U.S. The Problem Nevada is now everioneing a "perfect storm" of conditions that militate in favor of a drastic change in the way Nevada manages release of its offenders. With the Nevada Department of Corrections advancing an agenda of balancing security with programs and prioeiiizing rehabilitation of offenders, its gains are negated if the corresponding authorities responsible for parole release and community supervision do not move in complimentary directions fri the current atmosphere, those agencies are offsetting the Department of Corrections' statewide improvements and cost-efficiencies, undermining rehabilitation of offenders, and likely increasing recidivism in Nevada. Imminent action is necessary. In 1995, Nevada passed "Truth in Sentencing" laws, which, in some cases, lengtheeed prison sentences for serious crimes. As a general rule now. Nevada tends to have longer sentences for Category A and B' crimes then many other states. The impact of those changes is now being felt in Nevada uircctions. While the rest of the United States is experienciug decline in crime, Nevada's prison population is not declining. To the contrary, Nevada's new commitments to prison have increased. (This may be due, in part, to it being an election year.► The Department of Corrections is now experiencing a "bubble" of increased numbers for both male and female inmates. 'That situation is exacerbated by several facto's • Parole Board releases have declined'. • Terms of parole in Nevada are short compared to other states; few offenders participate in Nevada's Residential Confinement programs., • Too ▪ Drug Courts are now self-pay and few inmates can afford the $2,500 to $5,800 costs ($2,500 in rural courts; 83,300 Clink County; S5.,t3tX) in Washoe County); • At any given time, there are a few hundred inmates who have been granted parole serving out their sentences in prison because of inability to obtain housing or meet other conditions imposed by the Board of Parole Commissioners. agegoryA crimes arc the moa seriatim and carry sentences of Category 13 (AMOS earr„v sentences of vp in 20 year$, t I TrrTnn r -W..T.n1 Wu with nr without parole, and death .31un.rn r,rxr21 MT AMII rimm-d['-6406 14:23 From: To:8022571342 P.3/20 recidivism; fewer eleases; dissatisfaction with subjective or arbitrary parole hearing procedures; .. .. nets few nricinns• nithiicos rierrianci for Treatment and r • Nevada's Parole Board recognizes that parole and probation officers have few resourocs with which to help an offender stay out of prison, and thus seem to opt more often for full expiration of sentence rather than releasing an offender on parole to face probable failure in community supervision and inevitable re-inareaation; • Nevada's Pardons board occasionally changes a sentence so an ()Milder can be eligible for parole, btd the Board of Parole Commissioners most often denies parole to those Weeders For over a year, the Nevada Board of Parole Commissioners worked with James F. Austin, Ph.D., whose company has prepared the Department of Corrections inmate population projections for the. last decade. (Dr. Austin retired from George Washington University and. together with Wendy Nam, now tuns /FA Associates, LLC, and consults nationwide on corrections issues.) Through the National institute of Corrections; Dr. Austin was brought to Nevada to review and validate Nevada's parole procedures, which were literally created on a member's kitchen table years ago and had never been scrutinized by any outside observer or organization Dr. Austin found Nevada was outside the iiittinslmin and utilized subjective methods. Ile recommended that the Nevada Board of Parole Commissioners adopt objective guidelines and begin to use a risk-based instrument fbr making parole deciaions, in line with most other parole peords io this ilativii, An objective study would evaluate the Success or failure of that instrument's use and whether or not its recommendations were being followed or routinely disregarded in favor of subjective decision-making again. Additionally, the Parole Board bas determined that it overlooked a 190 amendment to the statute that allows forfeiture of an inmate's programming merit credits upon revocation of parole. The statute previously provided for forfeiture only of "good time" (good behavior) credits earned against a sentence Now the Board seeks to also forfeit any programming credits an inmate earned while in prison, Programming credits include those awarded for earning GED, High School Diploma or college degree; those earned fin completing long-term drug treatment programs; those earned in a vocational education or training program; those earned in the T)epartment of Corrections' 4S-week sex. offender treatment program and other psychological programs; and those earned for fighting fires or doing some other heroic act. The Department of' Corrections believes that forfeiture of such credits would sound a "death knell" to proeramruing and destroy any motivation inmates now have to become educated, to seek treatment and to engage in positive proarainuaing while in prison. An amendment to NRS 213,1518 would prevent the Parole Board from forfeiting earned programming credits liar offenders. sale in tier Unites tes Various conditions have caused many gam to abolish discretionary parole releases entirely and to more strictly dictate mandatory release practices through legislation. Those include such things as longer prison terms; burgeoning prison populations , failure to impact . 2 ttn . m.1 1-44-sinrs my Am" MAR-22-2006 14:23 From: To:8022571342 P.4'20 recidivism; fewer releases; dissatisfaction with subjective or arbitrary parole hearing procedures: rising capital construction costs for prisons; and the public's demand for treatment and rehabilitation of offenders in lieu of"warehousing" them, An examination of the parole systems utilized in the 50 states and the District of Columbia, from the most recent infatuation available over individual state websites and those of the American Parole and Probation Association (APPA) and Association of Paroling Authorities International (APAI) reveals that 21 states have entirely abolished Discretionary Parole Release by Parole l3oauds. They have done so either by: 1) imposing determinate sentences; 2) establishing mandatory parole release periods; 3) establishing a system of combined prison and post-incarceration supervision sentences imposed by the court at the time of initial sentencing; or 4) empowering the The Department of Corrections to determine when to release inmates into cormnunity supervision programs they operate or oversee. 21 states abolished Discretionary Parole Release fir sentences occurring during a Specified date in or alter the years shown below: 1976 Maine 1978 Wino's Washington 1984 1990 Delaware 1993 (3-years of mandatory parole) Colorado 1994 Arizona North Carolina 1994 1995 Virginia South Dakota 1996 2000 Oklahoma Minnesota (date unknown) Indiana Florida Oregon Kansas 1977 1983 1989 1993 1994 Arkansas 1995 Mississippi 1996 Ohio Wisconsm 2000 District of Columbia 2000 California (date unknown). A majority of states (38) have Their The Department of Corrections as the agency responsible for the parole supervision of offenders once Hwy leave prison_ Probation supervision is placed with the District Courts. The Department of Corrections supervises parolees in 20 States:* Alaska Georgia Iowa Louisiana Missouri Nebraska New Jersey North Dakota Rhode Island West Virginia Connecticut (for offenders with less than 2 yrs of supervision) Idaho Kentucky Michigan Montana New Hampshire New Mexico Oklahoma Vermont. Wyoming, 3 ,T TirCTMW7TA1TIn1 !Limma..1 ACII:OOM rT2M7_07_Alnkt MRR-22-2006 14:24 From: To:8022571342 P. 5/2, For the other states that have abolished parole, supervision of their dwindling parole caseload also is the responsibility of the Department of Corrections in 18 of the 21 states=: Arizona California Delaware Indiana Minnesota Florida Kansas Mississippi Ohio Virginia Oregon Washington Parole supervision comes under Colorado Illinois Maine North Carolina South Dakota Wisconsin an independent state agency in seven states: Arkansas District of Cohimhia Massachusetts Maryland Nevada South Carolina Utah, Parole supervision comes under the parole board itself in only six states! Alabama Hawaii Pomsylvania Connecticut (for parolees requiring 2+ years of supervision) New York Tennessee. 28 states have "community corrections" prognsus, according to The Corrections Yearbook 2002: Alaska Florida Iowa Louisiana Mississippi New Hampshire Colorado District of Columbia .Hawaii Kansas Idaho Kentucky Maine Maryland Nebraska North Carolina Montana New Jersey Ohio Oklahoma Rhode Island Virginia Utah Wisconsin Parole in Nevada Washington Pennsylvania Vermont West Virginia Wyoming. " Me Corrections Yearbook 2002 (Me most recent edition available, ,v-porting data through dm end of 2001) roari► that a total (4%33 oJ'ihu 51 states and District of Columbia are responsible for parole supervision of offenders, but presumably rim "antes' web:dies are more current, listing IN. 4 MAR-22-2006 14:24 From: To:8022571342 F.6 /26 Nevada remains one of the few states primarily utilizing the most expensive corrections options to address virtually all criminal conduct. Nevada incarcerates more people per capita than du must other states; uses probation considerably less than most other states; and has shorter terms of parole supervision than most other states (excluding those offenders who come under "lifetime supervision" requirements). According to the Bureau of Justice Statistics Bulletin "Parole and Probation in the United States, 2003," Nevada is ranked 4 th in the percentage of correctional population that is incarcerated, as opposed to being on probation, on parole, or in community-based correctional programs1 1. Mississippi 56.0% 2. Virginia 3. West Vitginia 54.6% 50.5% 49.1% 47.9% 4. Nevada 5. Oklahoma In the year 2002, Nevada also ranked 4 * with s0:3% and in 2001 Nevada ranked 3 rd with 50.7%. The average of all the states by geographical region is West Mid-west Sot nh 30% 25.6% North-east 31 2% 25.7%. Clearly, as reported by the Bureau of Justice Statistics, the number of inmates being released on parole in Nevada is declining. To assure ennsistency of measureincnt, the BJS reports both the actual number of parolees (which reflects state growth or decline), and the number being released par 100,000 state resident population (which reflects the rate of release:). Nevada's parole population has been: YR it on Parole # on Parole per 100k 2003 2002 4,176 243 3,971 2001 4,519 246 281 2000 4,056 3,893 273 295 1999 According to the latest Department of Corrections figures, the Nevada Board of Parole Commissioners has dramatically reduced its percentage of Discretionary Parole Releases from 50.7% to 41 7% through July 2004. For males, the rate of llseretiorary Release overall has dropped 6 6% from the 2003 raW. For females, the rate has dropped from 66,9% in 2002 to 57% in 2003 and so Far in 2004, to 48.M. Furthermore, the more telling statistic is the point in time that an offender is finally granted parole. While the Nevada Parole Board reports that a high percentage of inmates arc 5 TPCT qcorAnit:111 rro;7n Cello?-qt-nnNi rIHN-de-e006 14:24 From: To:8022571342 P.7/20 paroled, a great number of them are paroled six months or less before the end of their sentences. (Certainly, a shorter period of supervision insures a higher "success rate" sine most recidivism records are measured in one-year, three-year, and seven-year increments.) Nevada is reputed to have some of the shortest parole periods in the nation. It is common in Nevada for Category A and B feloob to return to the Parole Board as many as five times before they are granted Discretionary Release. The rate for Discretionary Release of male Category A felons is 31.5% and for Category B felons it is 45.8%. Curiously, Category C felons', whu represent less scions crimes and property primes, are only paroled at a rate of 38.5%. Felons convicted of Category 17) and E4 crimes, Nevada's least serious or clangorous, are only paroled at a rate of 50.5% and 44.2 %, respectively. National research confirms that low-risk offenders who are treated like they are high-risk, actually experience an increase in recidivism. Thus, Nevada's parole practices may be actually contributing to recidivism, rather than reducing it. Supervision periods of less than six months are insufficient to assist the parolee in reintegrating to the community, finding housing, finding decent employment and re-connecting with family and other positive social contacts. The states that have revamped their parole practices have recognized this. For ootraple: • Oregon instituted periods of post-prison supervision of a minimum of 6 months for crimes categories 1-3; 12 months for crime categories 4-10; 3 years for "dangerous offenders" (as defined by ORS Chapter 165), including murderers; 3 yrs for robbery or arson offenders; and the entire sentence term frir P particular group of non-violent offenders. See Oregon Revised &unites 144.096 et seq. • in Oklahoma, inmates in the highest crime categories can go to community corrections work release placement when they have 330 days left to serve on their sentences. Those in crime categories which require service of 85% of their sentence may go lu work release placement with 760 days remaining to serve. Non-violent inmates can transfer to community corrections with 210 days left to serve. See Oklahoma Operations Policy 060104. • In Ohio, F-2 and F-3 (violence) felons are subject to mandatory release periods of 3 years. • Minnesota, offenders serving indeterminate sentences undergo Adjustment Reviews annually and are placed in community supervision at least 2 years prior to sentence expiration. See Minn. Stat. 242.10; 242.19; 244.05, sulx12 and t and DOC. Policy 106.110. Offenders under supervision in the community and those under lifetime supervision undergo annual Restructuring Reviews, too. Sec Minn. Stat. 244.08, sulut LA and DOC Polley 701065. 0 Category Cfrians can he sentenced to 1-5 ;wars in prison anti a $10,000 fine. Category D and E Many can ba zmnteneed to 1-4 years in prIson and a $5,001) fine. 6 rIHN-ed-4006 14:24 From: To:8022571342 P.8•26 • In Maine, an inmate can be transferred to Sopa vised Community Confinement when he has served 2/3 of the sentence, if the sentence is 5 years nr more, and 74 the sentence if the sentence is 5 years or less. On the other hand, with a very short parole period, the pressure is tremendous for the offender to successfully accomplish re-integration and re-connection with family, employers and society. To expect all that to be achieved in six short months is essentially an invitation to failure for an of tinder who has been incarcerated a long time and lost the support network in the community, Certainly, the ineffectiveness of such short parole periods in Nevada and the utter futility of the revocation process is demonstrated when a parolee with much a remaining sentence is re* arrested and returned to prison to await a revocation hearing. The innate' s ie-incarceration Intake Processing co gs the Department of Corrections an average of $500 per person. Imprisonment costs Nevada taxpayers an average of $45 per day. It usually takes 2-3 months for the Parole Revocation Hearing to occur, incurring incarceration costs of $2,700 to 14.050 per parolee. By the time a decision is made to revoke, the inmate only has 2-3 months left to serve. Nevada has, thus, used its most expensive correctional option to accomplish very little. No strong message of punishment is delivered but the damage in job and family loss is great. Furthermore. the re-integration process is totally derailed. Nevada has a statute mandating release of offender% one year before the end of their sentence. The Nevada Legislature passed it intending to ensure community supervision for most offenders: NRS 213.1215 Mandatory release of minis primers. 1. Except as otherwise provided in subsections 3. 4 and 5 and in cases whore a consecutive sentence is gill to be served, if a prisoner Sentrhassd to imprisonment for a tens cd'3 years or more: (a) Has nut bum released on parole previously for that sentence; and (b)Is not otherwise ineligible for porde, he must be released on parole 12 mouths before the end of his maximise:6X as reduced by any malls ho has canted to mance his sentence pursuant to Chapter 209 of NRS. The Bona shall prescribe any conditions uuccsaary for the orderly =duct of the parolee upon his release. 2. Each parolee su Mowed must be supervised closely by the Division. in amordanee with the plan for supervision developed by the Chief pursuant to NRS 213.122. at least 2 months before a prisoner would otherwise be paroled pursuant to 3, If the Hoard subsection 1. that there is a reasonable probability that the prisoner will be a daugcr to public safety while on mole, the Board may require the prisoner to serve the balance of his sentraux and not grunt the parole provided for in subsection 1. 4. If the prisoner is the subject of a lawful request from another law enfoinernent agency that be be held or detained for release to that agency, the prisoner must not be released on parole, but released to that agency. 5. if the Division has not completed its cetablishment o( a prow.= for the juisoner's activities during his parole pursuant to this Winn. the prisoner TIMM be released on parole as soon as practicable after the priSeater'S program is established. 6. Fur the purposes of this lectiOn,, the determination of the l2-month period bcfoc die end of a prisoner's term must be calculated without consideration of any credits he may have earned to reduce Ins sentence bad he not bees, paroled. (Added to MRS by 1937, 945 ., A 1991, 702; 1993, 1526; 1995, 1260) 7 Tecroornmri•ni :Lim+ ru PI: oz. valv- (IT -fsnm MRK-22-2006 14:25 From: To:8022571342 P.9/E Unfortunately, there has been a ovnaistent trend of Nevada's Parole Board denying Mandatory Parole Releases in spite of the statute. Mandatory Parole Release are down since 2003 For males, that figure has decreased 3.4% and tier females it has decreased 4.2%. Rather, the Parole Board conducts a Mandatory Parole "Review" during which an increasing number of offenders are being 'dumped" entirely under the explanation that there is a "reasonable probability they will continuo to pose a danger to public safety while on parole." Basically, the exception in the statute (sec statutory language in red above) has become the rule. Thus, the Legislature's intent to ensure that every parolee undergoes at least one fill year of community supervision and assistance is being thwarted Much to the frustration of offenders and their families, a denial of parole release is usually ordered without inclusion of any findings or reference to specific facts in the inmate's case that support such a conclusion. There are repeated complaints that this violates Due Process of law. Presumably, the reason that 38 states placed parole supervision within the responsibility of their Department of Corrections is that prisons and parole should share a common objective— to promote public safety by using pou;tices that will ensure that the inmate does not return to prison. That common objective does not appear to exist in Nevada. Rather, the Board of Parole Commissioners demonstrates little belief iaa We concept of rehabilitation and sees its job as guaranteeing that an offender "does not make the headlines." 'Because of an unfortunate incident more than n Meade ago, a common rettain nom individual Parole Board members is that "it's my name that will appear in the front page if he gets out and re-offends." Without any statutory requirement to piovide a fact-based reason for continuing the umrimitment of an inmate, the Parole Board is free to arbitrarily and subjectively extend an offender's incarceration to *the point of expiration. Many inmates have reported that a Parole Board member has stated during a hearing, "1 just don't feel it or hear it in your voice." Statements such as that promote the perception of arbitrariness and undermine the public's confidence in the fairness and justice of the process. Yet, given the short parole terms in Nevada, it is difficult to see how an additional six months or even 17 months of incarceration ensures greater public safety. At the most, it provides the face-saving public justification that "we li.ept him off the streets as long as possible." It is generally understood that the Division of Parole and Probation slants toward law enforcement rather than offender rehabilitation As the agency responsible for preparing Pre- Sentence investigation Reports for the court to use in sentencing a defendant, the Division used to boast that the courts followed its incarceration recommendation 90% or more of the time An examination of the Performance Indicators reported by the Division to the state's Department of Administration, however, indicates that has changed: % of Court C.oncurrence with Prison Recommendations FY 2001 Creed R7/0 Agtual 12-mos. Ave.. not reported 8 " In: 4 u n trn pror, ry _Ara . - MR-22-2006 14:25 From: To:0022571342 2002 P.1, 82% 2003 87% 2004 76% 2005 76% 70% 71% 68%, 66%, 69% (3 months reported so far). Nevada's parole officers do not function film those in most other states. They clearly see themselves as "street cops" rather than case managers whose job is to help the offender reintegrate and stay crime-free. The Division has repeatedly sought Category 1 peace officer status for its officers from the Nevada Legislature and changed its managers titles to correspond to those in law enforcement, such as Lieutenant, Sergeant, etc.. 14 This attitude is an historic one in Nevada. The Division of Parole and Probation has not often sought to create or fund programming for parolees in the community. Until just this past year when the grant funding the Going Homo Pre red project required it, the Division of Parole and Probation had not utilized graduated or intermediate sanctions as an alternative to re-incarceration like most. other states do, Without exception, all the states that abolished Discretionary Parole Releases have some level of "community corrections" established. Most include such easily-implemented options as Day Reporting Centers, Work Release Programs, Diversion Centers, short-term detention centers, and drug treatment programs All such options cost considerably less to implement and operate than "hard- Inison beds Nevada has two Residential Confinement programs. One is for nut offenders sentenced. by the court to prison and treatment. it was created by Assembly Bill 305 and is called the "305 Program." The actual Remove determines which offenders go WO that program. DUI offenders make up barely 5% of the Department of Corrections' population of 11,300 offenders. That would be over 500 inmates one would think were eligible for the 305 Program. Over the past few years, the Division has lowered its goal for 305 Program participation Rom 76 inmates per year to just 60. The second Residential Confinement program is for other eligible offenders It was created by Assembly Bill 317 and is called the "317 Program." To get into this program, offenders are selected by the Dimetor of Corrections and approved by the Division of Parole and Probation for supervision. A review Of the Division of Parole and Pmbation's performance indicators and achievements as reported to the Nevada Deparunent of Administration shows how Little the 317 Program is used. In the last four fiscal years, while the Department of Corrections' population has been growing every year, the Division has decreased its use of Residential Confinement and continually lowered its goal for the number of inmates put into the program: 9 rm-rnry,7710,Tznt Ammo 'm camn_w_Arm MAR-22-2006 14:25 From: To:8022571342 FY 2001 2002 2003 2004 Gold in 317 88 65 66 56 P. 11'L Actual in 317 70 62 50 48, NitS 209.392 currently provides that the Division may accept for supervision offenders referred by the Director of Corrections into the 317 Pi off, The Department of Corrections lets qualified offenders apply for the program. However, the Division of Parole and Probation frequently find reasons to reject those nominated. Offenders must pay for their electronic monitoring devices themselves. The cost is determined by what the offender is paid in an hourly wage. One hour's pay is required to be paid daily to the Division in order for the offender to be in Residential Confinement. That is in addition to the supervision fee that must he paid monthly to the Division. That, too, likely discourages sonte from applying, In the 2005 Legislature, the Division of Parole and Probation secured additional funds to be able to pay up to 30 days fur some offenders who could not afibril electronic supervision immediately upon release from prison. Presumably this was done to increase the number of offenders in the 317 program. The Department of Corrections, however, does not predict such an increase because it says it already screens every inmate entering prison for eligibility for Residential Confinement. If the statutory eligibility requirements are so strict that few inmates qualify for 317 Residential Confinement, perhaps they should be revisited as occurred with Drug Court a few years ago. By mandating the ►se of cost-effective alternatives to incarceration, the Nevada Legislature could force Nevada into the nation's mainstream in correctional rehabilitation and find more effective ways of accomplishing its public safety obligations. Category C, D and £ felons are ideal. candidates for Residential Confinement, due to the nature or their crimes and the relatively short tenure of their incarceration. Nevada's Pardons Bowl,' consists of the Governor, the Attorney General, and all members of the State Supreme Court. Nevada citizens believe it is supposed to be the "final word" in release decisions in Nevada, In the 1980s, Nevadans acted through Initiative Petition and legislation to restrict the exercise of discretion given by the Nevada Constitution to its Pardons Board. That may explain why the Pardons Board infrequently pardons or Actually orders the release of an offender. More commonly, it commutes consecutive sentences to concurrent ones or ' educes sentences such that an offender can be eligible for parole. In Pardons Board meetings, members of the Pardons Board often state their opinions that a given offender should be released, then the Board votes to refer the offender to the Board of Parole Conuniesioners for further action. The Parole Board appears to frequently disregard the directions or stated intent of the Pardons Board, Prom the December 2003 Pardons Board meeting, seven offenders were referred to the Parole Board and three of the seven were denied parole and "dumped" from 2 to 4 additional years. From the January 2004 meeting of the Pardons Board, five offenders were referred for release and all five were denied and "dumped" from 1 to 3 additional years. Clearly, the Parole Board does not consider itself to be required to 10 R/C:H (22751WPWT:01 :41Ni 47n . rn mmn nr APY MAR-22-2006 14:26 From: To:8022571342 P.12/1. comply with the intent of the Pardons Board, or effectuate release of offenders commuted by the Pardons Board. ed article by Dr. James Austin, Ph.D. s delivered to the 2002 Salt Lake City Conference of APA1 .(.440prttuotled), aptly describes some of Nevada's major issues: • Low-risk offenders who requite minimal supervision and services are not being released as early as they should be: • Changing the length of stay by a few months has produced no impact on individual recidivism rates or aggregate crime levels; • Without taus empirically-validated parole guidelines, decisions can be arbitrary and capricious decisions; • High risk offenders should be given close supervision and [tore services to promote their re-integration and maintenance of a criine-ti-ee liCe; • Parole revocations should be limited to serious felony crimes and not misdemeanors or technical violations of parole rules. The Department of Corrections receives a constant barrage of complaints about the practices of the Parole Board. The complaints are usually referred to the Office of the Governor. The courts have ruled that the grant of parole is a privilege and not a right, and there can be no successful appeal from a Parole Board denial. Once appointed by the Governor to a 4-year term, Parole Board members are tiequented re-appointed. Members are seldom removed by the Governor. No office or agency oversees the operations of the Board or monitors its decisionmaking. With the Judicial and Executive branches taking a "hands off' attitude about the Parole Board, that virtually placcs the actions of the Board of Parole Commissioners "above the law" if the Nevada Legislature does not choose to serve as that "check and balance" of power. Offenders and their %railer, who are used to having appellate avenues of relick see this as a denial of their Due Process. Parole Board issues continually raised by Nevada offenders' families and lawyers include. • There is an "uneven playing ground" in that an offender does not see or know of material submitted to the Board by victims, law enforcement or even Corrections authorities, and therefore, cannot adequately or appropriately respond., • Legal counsel is not required, and sometimes is barely tolerated by the Parole Board; • The factual basis fun the Parole Board decision is not required to he given verbally or in writing to an offender who is denied parole; 11 oeol.$ Tcrromem;r:ni To:8022571342 MAR-22-2006 14:35 From: P.13/2L • The scores of the of ender on the "guidelines" form used by the Parole Board are meaningless. Offenders with low or no "points" are Wien denied parole while those with high "points" can be granted parole. The Board acknowledges that they routinely disregard the scores; • There are no standards of achievement by which offenders can set their sights on parole as the Board subjectively evaluates inmates' performance and has no definitive method of assessing programming or treatment performance; • The Parole Board routinely requires mental health treatment, substance abuse treatment and specialized housing without any specified or articulated evidentiary basis from the inmate's zecord and sometimes in disregard of protessitmal opinions stated by the Department of Corrections' staff in reports to the Board; • Nevada's *Parole Board operates without realistic data from the community on the availability of transitional housing, treatment beds or professional programming, and thus, often requires unrealistic and impossible conditions that prevent an offender froth being able to meet the Board's prerequisites to release. Hundreds of offenders end up expiring their sentences in prison; and • Nevada's Parole Board ignores the instructions and/or intent of the Pardons Board Nevada has several options to consider that could be proposed in an Otitncier Accountability Act: Nevada could follow the example of many states that have rectified Due Process 1) violations by implementing statutes setting forth in detail how the Parole Board must conduct its business, leaving nothing to intxspretation. This should include mandating the use of an objective risk-assessment instrument as the basis for release decisions, in much the same way the Legislature mandated standard instruments to determine the risk of sex offenders to re-offend. Nevada's Legislature could strengthen the Mandatory Parole Release law to direct that all offenders must receive a longer, specified term of community supervision, and eliminate the exception to the rule, which gives the Pm de Board the discretion to disregard the statute. 2) Funds could be allocated for prison inmates to enroll in Drug Court. The current system 3) is ripe for a Denial of Equal Protection lawsuit asserting that only the wealthy can receive court, supervised treatment. 4) The Nevada Legislature could mandate a system of intermediate sanctions to be used by the community supervision agency and could prohibit re-incarceration for technical violations of parole. 12 Tan992202.T:01 ;WOM .1 860:20 CRN-9I:OnN MAR-22-2006 14:35 From: 10:802257I342 P.14/20 5) The Nevada Legislature could eliminate Parole Board jurisdiction for Category C, D and E felons and enact a statute that such low-risk felons must be released upon completion of then Minimum sentence. 6) Nevada could improve parole super vision by providing more funding for the Division of Parole and Probation to assist offenders in securing mental health and/oi substance abuse treatment and other forms of assistance that would !educe their barriers to success in the community. Funding for ID cards should be included so offenders can go straight to work upon their release. 7) As Idaho has done, the Nevada Legislature could allocate some housing assistance Funds, in the form of a voucher program to be operated by an appropriate entity, to enable o(raiders leaving prison to secure housing in the community upon release from prison. The fund could provide security deposits, first month rent, cleaning deposits or whatever other form of assistance the Legislature deemed appropriate. The Nevada Legislature could fund some. Social Worker positions for the. Division of 8) Parole and Probation, as proved successful in the Going Home Prepared program, to help parolees navigate the bureaucracies and overcome the barriers that prevent them from successfully accessing community resources. As part of its Specialty Court Program, the district courts could create Re-entry Courts as 9) the Eighth Judicial District did for the Going Home Prepared prom= which proved that ongoing judicial involvciucnt in the community supervision process, lather than just at revocation time, promotes compliance and offender success in the conununity. Whatever options are chosen, Nevada must take some immediate action to reduce its costs of incarceration, use more cost-effective alternatives to prison, and establish some level of cooperation and continuity in the objectives of Corrections., the Parole Board, and the community supervision agency. 13 PeCHA T4.7tiTC1PCMJT:Ill .1"01 irnmrsr. Sown —i env Amil MAR-22-2006 14:35 From: To:8022571342 P.15/20 ACLU of Nevada MEMO DATE; TO: FROM: RE: 1. March 14, 2006 ACR 17 Subcommittee to Study Sentencing and Pardons, and Parole and Probation American Civil Liberties Union of Nevada The Parole Board, Policies fur Granting of Parole, Operations of the Parole Board, and Alternative Methods of Offender Management The Pardons Board The Pardons Board currently functions in a tentative and rather unpredictable manner in terms of both process and results. These conclusions arc supported by relevant sections of the paper entitled, "A Look at Parole in Nevada and the U.S." We understand that this paper was given to Assemblyman David Parks in 2005, and that its distribution contributed to the creation of your subcommittee. it was also presented to the ACLU of Nevada. We have been told that the paper was written, at least in part, by officials of the Nevada Department of Corrections while Ms. Jackie Grawliird was the director of that department. Although our copy of this report is undated, it was presumably completed in 2004 or 2005. The report suggests that the Nevada Pardons Board is highly constrained by an initiative petition and by legislation from the 1980s. It emphasizes that largely due to such legal and political developments: "...the Pardons Board infrequently pardons or actually orders the release of an offender. More commonly, it commutes consecutive sentences to concurrent ones or reduces sentences such that an offender can be eligible for parole."' Furthermore, the paper indicates that the when Pardons Board does vote to refer the offender to the Board of Parole Commissioners for further action, that "The Parole Board appears to frequently disregard the directions or stated intent of the Pardons Board." It documents this by noting that of the 12 offenders referred to the Parole Board at the Pardons Board sessions of December 2003 and January 2004, the Parole Board denied parole in 8 of the 12 cases. The author(s) of the report then comment, "Clearly, the Parole Board does not consider itself to be required to comply with the intent of the Pardons Board, or effectuate release by offenders commuted by the Pardons Board." We also endorse the argument in the Department of Corrections paper that the will of the Pardons Board, its members being elected officials, should not he routinely ignored or overruled by the appointed Parole Board. We do not believe that the operative role of the Pardons Board should be largely advisory in relation to the Parole Board. DOC mean) at 10. 1 MAR-22-2006 14:35 From: To:8022571342 P.16/20 Americans are increasingly aware that the criminal justice system is capable of convicting and sentencing innocent persons as well as persons whose guilt is based on flawed, negligent, and even intentional use or abuse of evidence. At the same time, federal and state law has made it increasingly difficult. to obtain postconviction relief in the state or federal courts based on evidence of innocence or inequity. In Nevada, sentencing can he extremely harsh, and the Pardons Board's role in mitigating the harshest and most disproportionate sentences is a crucial one. l'he need for proportionality in sentencing demands more scrutiny from state officials, and the Pardons Board should be an integral part of that process. As such, the ACL1J of Nevada suggests that the subcommittee consider legislation to ensure the adequate staffing of the pardons process as well as equal access to that process for offenders regardless of their race, nationality, gender, class, or political connections. Membership on the Pardons Board should be based on consideration of such factors as the will of the electorate, the accountability of Pardons Board members to the voters, the sufficiency of each member's time, commitment, and expertise, and the absence of conflict among the official and unofficial duties of each member. 'that body exercises a historically important function, and should consist of members who believe in equity and justice, and in the availability of clemency as an integral part of the criminal justice system, 2. Policies for Granting of Parole Our main concern is the continued failure of the Parole Board to set objective criteria and formal policies for granting or denying parole. A subjective 'risk assessment' system, without any requirement for written justification, is a threat to fairness and due process for every prisoner. In addition, this lack of standards fails to respect the legislature's wishes concerning the need for supervised releases 'from prison as codified in NR.S 213.1215. It is vital that the subcommittee recognize that all those involved will be released within one year. It is basically a question of release with or without parole supervision. NRS 213.1215 has strong language mandating release on parole for most inmates at least 12 months betbre the end of maximum prison term. However, this mandate is routinely ignored by the Parole Board, which seems to be greatly overusing the public safely exception to that rule. In fact, the approval rate fir "discretionary parole releases" fell from 50% in 2003 to 41.7% in the first half of 2004.2 If the legislature is serious about enforcing their own mandate that most prisoners be released prior to their maximum terms, the Parole Board's discretion must be reduced. As previously decided by the Legislature, grants of parole 12 months prior to sentence expiration should be the standard, with the Board having the 2 These figures have been obtained li-om the "covert" Nevada Department of Corrections report issued anonymously in 2004 or 2005 and given to our office. We have forwarded a copy of this detailed report to members of the committee. 2 MAR-22-2006 14:36 From: To:8022571342 P.17/20 responsibility of articulating objective risk factors on the record for extending incarceration past that point. The Legislature should consider stripping Parole Board jurisdiction over Category C, D and F. felons. Mandated release of low-grade felons upon completion of their minimum sentence would help to achieve legislative goals set out in NRS 213.1215. The only exceptions to this mandated release should involve definite and specific factors, such as commission of crimes while incarcerated, Otherwise, these low-risk felons arc exactly the target population for the release schedule set out in NRS 213.1215. Yet a high percentage of these low-risk felons continue to be incarcerated for no stated specific or objective reason. This current practice taps limited prison resources and threatens rehabilitation efforts. 3. Operations of the Parole Board: Open Meetings Another issue of major concern is the Parole Board's interpretation of the state Open Meeting Law statutes (NRS 241), which exempt judicial proceedings from Open Meeting Requirements (NRS 241.030 (4)(a)). While the Parole Board does exercise certain judicial functions, it is clearly not a judicial body. Potential parolees have no right to counsel, no protection against self-incrimination, and lack other .procedural rights standard in judicial proceedings. Crucially, the Division of Parole and Probation is part of the executive branch, not the judicial branch, of govemment.3 Indeed, from the enactment of the Open Meeting Law statute in 1960 through 2001, common practice, memoranda from the Attorney General's office, and legal opinions affirmed the applicability of the Open Meeting Law to Parole Board hearings' However, after the Parole Board unsuccessfully lobbied the state legislature to exempt them from the Open Meeting Law rules in 2003, the Parole Board began operating outside of the Open Meeting laws. Without proper notice and meeting requirements, this allows lbr the kinds of subjective decision-making and abuse of process documented in the covert DOC memo. Parole grants have been reduced by a significant percentage since the Board exempted itself from Open Meeting law requirements. Without public oversight, it is impossible to ensure that the Parole Board is operating fairly and appropriately. The. Open Meeting Law statutes are based on the premise that "the Legislature finds and declares that all public bodies exist to aid in the conduct of the people's business. It is the intent of the law that their actions he taken openly and that their 3 The Open Meeting Law exemption for judicial proceedings is paired with extensive constitutional and statutory law that guides the operations of the judicial branch and safeguards the rights of defendants. This cannot be said of Parole Board proceedings. The litet that the Division of Parole and Probation is not Whitehead P. Nevada Connnin on Judicial within the judicial branch is a critical distinction. SPA Discipline, 110 Nev. 874, 878 P.2d 913 (1994). See, i.e., Division of Parole and Probation Manual, Operations of the Board, Parole Application Hearings policy 2 (revised October 12, 7001) ("All hearings conducted by the Board are open to the public in compliance with the Nevada Open Meeting 1.aw."); Donnelly v. Nevada, Nev. Dist. Ct. Case No. 0100360A, Order Granting Motion to Dismiss (March 25, 2002), at 3 ("IN jo specific statutory exemption in the Open Meeting Law to Parole Board meetings has been cited to this Court."). 3 To:2022571342 MAP-22-2006 14:36 From: P.18/20 deliberations be conducted openly" (NRS 241.010). Certain exemptions exist for judicial proceedings and for meetings concerning private disciplinary action. En a Parole Board meeting, neither the protections of a judicial proceeding (constitutional guarantees, extensive record-keeping), nor the interest of protecting the innocent exist!' As for privacy concerns, the person in a Parole Board hearing who has the primary right to privacy is the potential parolee, who, like other individuals listed throughout the Open Meeting Law statutes, can waive this right. Thus, Open Meeting Law exceptions grounded on parolee privacy are unfounded. As for testifying victims and their Families, details of past events or crimes arc already part of the public record of any prosecution, so any privacy interest is minimal and inadequate to trump the public interest in having open government. A state inmate whose mother was turned away from his parole hearing has recently tiled an appeal currently under consideration by the Nevada Supreme Court, asking the Court to interpret whether Parole Board meetings arc in fact subject to the Open Meeting Law as it now stands. Had we at the ACT .11 of Nevada known of this lawsuit earlier in the process, we would have joined in urging the Court not to allow the Parole Board to exempt itself from the requirements of the Open Meeting Law. We urge this subcommittee to affirm that Parole Hoard hearings are covered by the Open Meeting statute. Unlike judicial proceedings, which offer constitutional protection, explicit written records, and the assessment of guilt or innocence, Parole Board meetings are within the spirit and letter of the Nevada Open Meetings Law. It is only through open government that we can hope to improve our parole system and make necessary policy changes. 4. Alternative Methods of Offender Management a. Issues Concerning the Current Drug Court System Nevada drug courts are now self pay and few inmates can afford the $2,500 to $5,800 costs ($2,500 in rural courts; $3,300 in Clark County; $5,800 in Washoe County). As the DOC report provided separately to the subcommittee suites: "Funds should be allocated [by the state] for prison inmates to enroll in Drug Court. The current system is ripe for a Denial of Equal Protection lawsuit asserting that only the wealthy can receive court-supervised treatment." The goal of getting nonviolent drug offenders out of the system and into treatment programs is laudable, and one the ACLU of Nevada supports whole-heartedly. But such a system means little when those who would choose this method of 5 The Nevada supreme Court has unequivocally held that exceptions to the Open Meeting 1.aw must be "expressly enacted and specifically provided." illc:Kay v. Board of Supervisors of 1 Mogi as County, 103 Nev. 490, 492-93 (1987). 4 To:8022571342 MAR-22-2006 14:36 From: P.19/20 rehabilitation cannot afford to participate. Currently, the benefits of the Drug Court program are available only to financially better-off defendants. The legislature should allocate funds, on an equal or need-based basis, to those who wish to enroll in Drug Court. While allocation of funds is often a thorny issue, in this instance it stands to save the state money. When defendants can go through a one-time Cost of a drug treatment program, they remain out of the expensive jail system. Furthermore, genuine treatment is more likely than incarceration to reduce recidivism rates. Nonviolent drug offenders should all have the opportunity to benefit from the state's new alternative treatment programs. If funds are allocated for this purpose, the Nevada public will benefit as well. b. Intermediate Parole Jurisdiction for Technical Violations Currently, reineareeration for technical violations of parole is a leading cause of unnecessarily lengthy sentences. There should be provision for intermediate parole sanctions to be used by the Community Supervision agency. Rather than have every parole violation lead to formal proceedings or automatic reincareeration, an intermediate sanction system could more appropriately address causes of technical violations, increase supervision, and assist with successful rehabilitation into society. Since the Conununity Supervision process is in place, this would he a cost-effective and efficient manner of responsively sanctioning minor violations of parole conditions. Some of the causes of parole violations, such as substance abuse or mental health issues, or access to stable housing or transportation, could also be more thoroughly addressed by better Community Supervision agency programs, as suggested below. c. Suggested Programs to Assist with Successful Re-Entry, into Society Recidivism rates cannot be lowered without some meaningful social and occupational programs for parolees reentering society. We believe that the Division of Parole and Probation can become much more responsive to the root Causes of reinearceration with the addition of more such programs. As the vast bulk of criminal justice literature finds, keeping offenders outside of the prison system is a far more difficult task in the absence of access to stable housing and help fur mental health or substance abuse problems. Therefore we believe that the highest priority should be given to new funds for afthrdable housing and treatment programs. Housing assistance should be given in the form of housing vouchers; and funds should be available for access to treatment programs. Finally, in order to evaluate individual cases to make sure appropriate services arc being provided, the legislature should fund positions for social workers within the Division of Parole and Probation. 5 To:8022571342 MAR-22-2006 14:36 From: 5. P.20/20 Legislative Suggestions This section recaps concerns listed throughout this memo; and proposes changes to the NRS in the form of an omnibus parole and sentencing act. This proposal would: A. Mandate that the Parole Board use an objective risk-assessment instrument as the basis for all release decisions and make written findings of each decision; B. Remove discretion from the Parole Board for release on parole 12 months velure: the expiration of the maximum term for most olienders, and require specific, recorded justification for departures from that release structure; C. Eliminate Parole Board jurisdiction for Category C. D and E felons; instead mandate release to parole of low-grade felons upon completion of their minimum sentence; D. Allocate adequate funds for prison inmates to enroll in Drug Court; E. Mandate a system of intermediate sanctions for parole infractions to be used by the Community Supervision agency; F. Prohibit re-incarceration for technical violations of parole; G. Fund Division of Parole and Probation to adequately assist offenders regarding mental health and substance abuse; Fund housing vouchers for released inmates; and . Fund Social Worker positions for Division of Parole. and Probation. 6