It might have been two decades ago, but Attorney General-elect Aaron Ford remembers the night two officers arrested him for walking home drunk when he was an 18-year-old student at Texas A&M.
Though he admits he was in the wrong for drinking underage, it’s hard not to imagine the consequences he faced were tied to the color of his skin. “They said, ‘Where you goin’ boy,?’” Ford recalls. “That was a common experience in Texas and at Texas A&M.”
For an African-American male, in particular one living in the south, the word “boy” is deeply connected to a long-standing history of disregarding black lives. “Those cops could have used discretion,” Ford says. “They could have walked me home or put me in the squad car and taken me to my dorm.”
But they arrested him. A college student. Drinking on campus.
Years after that night, Ford finished school, became an attorney and eventually was elected to the Nevada legislature. However, during this year’s campaign for attorney general, the nearly 25-year-old arrest from that night, along with two other run-ins with the law around the same time, surfaced in a series of attack advertisements released by the Republican Attorneys General Association.
Though the tactic was ostensibly to cast doubt on his qualifications to serve as Nevada’s top attorney, it also reflected the larger issue of how people’s past involvement with the justice system — especially for people of color — can have haunting consequences.
“This wasn’t just my experience, but things I’ve seen happen in areas I grew up in,” Ford said in an interview last week. “The exercise of discretion was not afforded to me. Instead, I was slapped with an arrest I still have to deal with 28 years later.”
In recent years, reformers have highlighted the need to tried to rethink the role of over-policing within communities of color, lopsided sentencing practices, the role the war on drugs plays in mass incarceration, how the cash bail system disadvantages low-income communities, and other inequities in the criminal justice system.
Nevada has been coming to terms with its own issues, which have come to light through data collected by the Crime and Justice Institute.
For one, the state’s incarceration rate has increased 7 percent in the last decade, despite the rate decreasing 7 percent nationally. People are being incarcerated for more non-violent offenses, staying longer and not getting the tools after their release that help prevent a return to the system.
“I think the data we’ve seen shows a really big need” for changes to Nevada’s approach to criminal justice, says Amy Rose, the legal director of the ACLU of Nevada. “That’s from the way we define certain crimes, to sentencing, to the way we house inmates and get them ready for re-entry.”
Following the 2018 midterm elections, in which Democrats retained control of the Senate and Assembly and also elected a Democratic governor and attorney general, change may, even should, be on the horizon.
“Criminal justice reform is coming on all fronts,” Ford says.
But it remains unclear whether reforms will aggressively, adequately address systemic inequities, or just chip at the edges of the issue.
Not a hot issue on the campaign trail
As he was fending off ads painting a black man as a criminal while trying to become the first African American elected to statewide office in Nevada, Ford did not make criminal justice reform a high-profile part of his campaign.
Neither did anybody else.
The issue did receive some attention during the primary, in the form of Robert Langford’s unsuccessful challenge to District Attorney Steve Wolfson. But the issue was decidedly low-profile during the general election campaign. One exception was a September roundtable featuring former U.S. Attorney General Eric Holder, where Governor-elect Steve Sisolak said he was “willing to look at whatever the Legislature brings forward” with respect to criminal justice reforms.
In previous sessions, the Nevada Legislature passed bills to vacate some marijuana convictions, change language on drug trafficking laws, and begin to confront the current bail system. Many of these bills were vetoed by Gov. Brian Sandoval.
Around the country, other attorneys general have started to address the deficiencies of the criminal justice system, whether it’s standing up to the bail industry or even suing local municipalities in order to carry out police reforms.
Ford says his experience as a person of color shapes his views of the criminal justice system and how it plays out for black and brown people. “When I talk about discrimination, I’m talking about what I know, not what I’ve heard,” he says.
In order to become the first African-American attorney general in Nevada, and the first black candidate elected statewide, Ford had to navigate through a minefield of “racial dog-whistles.” “This is just a common occurrence for people of color,” he said.
In races across the country, people of color had to endure similar obstacles.
Antonio Delgado, a newly elected congressman in New York, is a Harvard graduate and Rhode Scholar, yet was only referred to as an ex-rapper.
Gubernatorial candidate Stacey Abrams faced blatantly racist attack robocalls such as: “This is the magical negro, Oprah Winfrey, asking you to make my fellow negress, Stacey Abrams, the governor of Georgia.” President Trump went on to call the Yale graduate, Harry S. Truman Scholar and former minority leader in the Georgia Assembly unqualified.
The list goes on and on. For Ford, it was about his criminal history, none of which resulted in a conviction, when he was in his late teens and early ‘20s.
Despite efforts to paint him as unqualified, Ford squeaked through with 4,700 more votes than his opponent, Republican Wes Duncan.
“Bail reform is important to me,” Ford says. “We had a bill brought up last session by (Assemblywoman) Dina Neal that would have looked at this. During the bill’s hearing, she mentioned in Harris County (Texas), the bail system was found unconstitutional because it discriminated against people without means who were in jail simply because they didn’t have money.”
The bill was inevitably vetoed, but legislators have indicated they will revisit bail reform when the they meet early next year. Ford, meanwhile, said he intends to work with Wolfson and other district attorneys around the state “to see how we can carry out a bail reform system that better serves our community.”
“The first thing I’m going to do is to start having conversations with them,” he said. “Let’s see the data and statistics. Let’s figure out what’s happening jurisdiction by jurisdiction.”
‘We’re not in the dark’
The state is collecting data.
Under the direction of Sandoval, and with funding from the Justice Reinvestment Initiative, Nevada has been reviewing its criminal justice system.
In a series of presentations in front of the Advisory Commission on the Administration of Justice (of which Ford is a member), the Crime and Justice Institute presented data it compiled on sentencing, release and other corrections practices in the state.
“For too many years our state has funneled money into the prison system without really taking stock of whether our communities are safer as a result,” Assemblyman Steve Yeager, the chair of the advisory commission, said during a November hearing. “Nevada is actually bucking the national trend with an increased prison population, while other states, including states with overall population growth, have succeeded at reducing its prison populations.”
Texas and Florida have both had population growth, according to the Crime and Justice Institute. But they’ve also seen a decrease in the prison population.
“It costs our taxpayer $347 million annually,” Yeager said. “That financial strain is hitting our state budget and taxpayers’ wallets. It is not resulting in improved public safety.” As Nevada tries to figure out how to pay for improvements to education, health care or mental health services, it has less funding to do so if money is going toward building more correctional facilities to contend with rising prison populations.
Incarcerations rates among women grew 39 percent in the last decade, with nearly 80 percent imprisoned for non-violent crimes, typically drug-related offenses or property crimes such as burglary. Non-violent property and drug crimes are also among the top reason men are incarcerated.
“It is also interesting to see that we generally give women longer sentences for the same crimes men do,” Yeager said. “We don’t really have an answer for why.” Crime and Justice Institute research indicates Nevada inmates, overall, are staying behind bars much longer.
About 90 percent of habitual criminals present some sort of behavioral health need, whether it’s mental health or substance abuse issues. The number of people in prison with some sort of mental health need also grew by 35 percent in the last decade.
“You can’t deny the mental system and the criminal justice system are intertwined,” Ford said. “Those who commit crimes should be punished. For those who have an underlying mental health need, we need to look at diversionary tactics.”
The most recent presentation to the advisory commission reviewed recidivism rates and the role of community supervision programs in corrections. For those who make it into supervision programs, substance abuse issues such as failing drug tests or not meeting treatment requirements account for almost half of the violations.
Nearly 30 percent of the people released from the Nevada Department of Corrections will return to prison within three years. Recidivism rates are highest among female offenders as well as those who commit drug and property offenses.
There are still missing components in the data. For instance, the state doesn’t adequately track how people of color are affected by the criminal justice system.
Better tracking is just one of the several steps the Legislature needs to authorize, says Rose with the ACLU.
Rose says lawmakers must also revisit statutes on burglary and drug trafficking. According to data, more than 70 percent of burglaries occur without a victim present. Nearly half of drug trafficking charges hinge on the weight amount of the drug, not necessarily the defendant’s role in the transaction.
And Nevada needs to rethink the nationally common and long-standing incarceration-first approach to criminal justice. “The data shows specialty courts have helped some in providing alternatives for incarceration, but there is always room for improvement,” Rose says.
The Crime and Justice Institute suggested policies that better incorporate treatment into supervision programs, reinforcing positive behavior with rewards, and using “proportional sanctions” as a way to address negative behavior — all things rooted in evidence-based practices.
While Yeager says bills will come as a result of the commission, he also imagines that some of the bills that passed previous legislatures, but that were vetoed by Sandoval, might return and add to reform efforts.
With newly elected officials taking office, Rose remains hopeful that change could happen. “Every time a new administration comes in, it’s a great opportunity to educate them about these issue and start shifting our approaches,” she says. “You have different people with a fresh set of eyes. It helps that Ford sits on the advisory commission, so he has been able to see all the ways Nevada is lacking when it comes to the criminal justice system.”
Ford thinks Nevada is long-overdue for reforms, and could finally see meaningful change.
“If you look around the country, every state whether it’s blue, red or purple, has enacted criminal justice reform,” Yeager adds. “Nevada has been a little delayed. The plus side is we have other models to go off of, and we’re not in the dark.”