Supreme Court quashes motion
The Nevada Supreme Court quashed a motion filed by the Washoe County District Attorney’s office urging the court to reconsider its earlier ruling denying district court judges the right to place drug possession convicts in jail as a condition of mandatory probation.
The decision, reaffirmed on Sept. 19, also only allows judges to sentence drug possession criminals to a one-to-four year prison sentence, rather than a 15-, 16- or 18-month minimum as many judges, including those in Douglas County, had done.
Department Two District Judge Michael Gibbons said he hoped changes made to the “category E” felony, or felony drug possession classification by the Legislature would cure problems associated with the sentencing guidelines.
Gibbons said the new guidelines no longer make probation for drug-possession offenses mandatory if a defendant is on probation for a felony when the new crime is committed, had previously had a felony probation revoked and has two or more prior felony convictions.
However, then new guidelines do not take effect until July 1998.
“We will complete the changes next (legislative) session,” said District Judge Dave Gamble, Department One. “Legislation will be presented to fix the problem.”
“Someone needs to come up with a bill to let us send (drug possession convicts) to jail,” said Gibbons. “If no one else will do it, I’ll do it on my own.”
Desiring to stop judges from sentencing small-time drug possession criminals to lengthy prison stays, the Legislature passed a law about three years ago making probation mandatory for those convicted of a category “E” felony.
In attempting to extract some justice and feeling their hands were tied to do anything else, many judges made lengthy county jail terms a condition of probation in lieu of sending drug possession criminals to prison.
Although the Legislature said drug possession criminals couldn’t be sent to prison for their first two offenses, judges were forcing them to be incarcerated in county jails often for as long as one year, the length of time many would have spent in prison had the Legislature not made probation mandatory.
Two men convicted of drug-possession felonies in 1996, one in Washoe County and one in Lyon County, received jail sentences of one year and six months respectively.
Both took their cases to the state’s highest court which reversed and remanded the cases on June 17 to district court for appropriate sentencing. Both defendants had already served out their jail terms by the time the cases were heard by the court.
Gamble said imposing jail time as a condition of probation was an effective way of dealing with drug users for two reasons.
“One reason is jail time to serve as a warning,” said Gamble. “The other is frequently they need time to get dried out and get the drugs out of their system.”
“I guess we’re stuck with that law,” said Gibbons. “I certainly am disappointed. It don’t think that’s what the Legislature intended. They didn’t say anything about sending them to jail.”