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Nv Aclu Parole Report

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MAP-22-2006 14:23 From:



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




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

agegoryA crimes arc the moa seriatim and carry sentences of
Category 13 (AMOS earr„v sentences of vp in 20 year$,

t I


r -W..T.n1

Wu with nr without parole, and death

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recidivism; fewer eleases; dissatisfaction with subjective or
arbitrary parole hearing procedures;
.. ..
nets few nricinns•
nithiicos rierrianci for Treatment


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



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
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.

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

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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:
Washington 1984	
1993 (3-years of mandatory parole)
North Carolina 1994 	
South Dakota 1996 	
Minnesota (date unknown) 	



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:*

New Jersey
North Dakota

Rhode Island
West Virginia

Connecticut (for offenders with less than 2 yrs of supervision)
New Hampshire
New Mexico




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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






Parole supervision comes under


North Carolina
South Dakota


independent state agency in seven states:

District of Cohimhia

South Carolina
Parole supervision comes under the parole board itself in only six states!



Connecticut (for parolees requiring 2+ years of supervision)
New York

28 states have "community corrections" prognsus, according to The Corrections
Yearbook 2002:

New Hampshire	


District of Columbia




North Carolina

New Jersey	



Rhode Island


Parole in Nevada



West Virginia


" 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.


MAR-22-2006 14:24 From:


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


2. Virginia
3. West Vitginia


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

Sot nh




31 2%

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:

it on Parole # on Parole per 100k












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

TPCT qcorAnit:111

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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

• In Ohio, F-2 and F-3 (violence) felons are subject to mandatory release periods of 3

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


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.


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• 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
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
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
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)


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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


Agtual 12-mos. Ave..

not reported

" In: 4 u n trn pror, ry _Ara .


MR-22-2006 14:25 From:













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:


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Gold in 317


P. 11'L

Actual in 317

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




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MAR-22-2006 14:26 From:



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

• Legal counsel is not required, and sometimes is barely tolerated by the Parole

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;




MAR-22-2006 14:35 From:



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

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
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.


Funds could be allocated 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 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



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MAR-22-2006 14:35 From:



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.
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.

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
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
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.




.1"01 irnmrsr.

Sown —i env Amil

MAR-22-2006 14:35 From:



ACLU of Nevada MEMO


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.


MAR-22-2006 14:35 From:



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,

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
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.


MAR-22-2006 14:36 From:



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.

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"); 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.").


MAP-22-2006 14:36 From:


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
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.

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
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 must be

"expressly enacted and specifically provided." illc:Kay v. Board of Supervisors of 1 Mogi as County, 103
Nev. 490, 492-93 (1987).



MAR-22-2006 14:36 From:


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.



MAR-22-2006 14:36 From:



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

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
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.




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