Lawmakers see pathway to criminal justice overhaul, but will they take it?

Divisions and theatrics in Washington were briefly surmounted last month when Congress passed criminal justice reform legislation. The First Step Act is a modest, yet important, effort to ease punitive prison sentences and begin to address mass incarceration at the federal level.

But the bill only addresses a sliver of the problem. States have a much bigger share of the nation’s incarcerated population.

For the last several months, the Advisory Commission on the Administration of Justice has looked at the data surrounding Nevada’s 7 percent increase to the state’s incarceration rate, which will result in the state spending $348 million on corrections in the 2019 fiscal year.

“The Nevada prison population is projected to grow 9 percent by 2028 costing $770 million,” said Assemblyman and committee chair Steve Yeager. “That comes at the cost of the taxpayers.”

On Friday, the commission voted 11-4 to advance 25 policy recommendations that address problems identified in data collected by the Crime and Justice Institute. Committee members Chuck Calloway, the police director for Las Vegas Metropolitan Police Department, Douglas County District Attorney Mark Jackson, Henderson Judge Sam Bateman and Reno Assemblywoman Lisa Krasner opposed advancing the recommendations as a whole.

The Crime and Justice Institute estimates the proposals could avert 89 percent of the anticipated prison growth over the next decade and help Nevada avoid an estimated $640 million in additional spending. “The recommendations are specifically designed to improve public safety by holding offenders accountable, reducing recidivism, and increasing the resources available to combat the state’s behavioral health crisis,” CJI’s final report notes.

Lawmakers are encouraged to reinvest money into re-entry services, drug and mental health treatment, and diversion programs that could reduce incarceration and recidivism rates

Calloway says the recommendations, specifically those to rewrite statutes pertaining to burglary, theft and drug crimes, would be a threat to public safety, increase criminal activity and deter people from coming to Las Vegas. “We will see a negative impact on our economy when people come to this state and realize we’ve lowered crimes to a misdemeanor and we’ve made property crime less of a priority,” he said.

Jackson added the data and some of the policy recommendations presented by the Crime and Justice Institute haven’t been fully vetted. “Statistics are used much like a drunk uses a lamppost, for support not illumination,” he said.

Former Gov. Brian Sandoval ordered a review of Nevada’s justice system in August, funded by the Justice Reinvestment Initiative. For nearly six months, the Crime and Justice Institute has been compiling the state’s data to find out who is in Nevada prisons, why they are locked up, how long they are incarcerated and how often they recidivate.

The data culminated in 40-page report presented to the commission, which showed Nevada’s prison population had a 7 percent increase over the last decade, despite a 7 percent decrease nationally. Nevada’s imprisonment rate is now 15 percent higher than the national average.

Some of the other findings, which the group presented over a series of meetings:

• 66 percent of prisoners in 2017 were sentenced for nonviolent crimes, with four out of 10 having no prior felony convictions.
• Recidivism rates have increased for all offenses.
• The length of time people have served has increased 20 percent, or about 4 months longer, since 2008.

According to the Crime and Justice Institute, Nevada’s incarceration rate for women has increased 39 percent in the last decade, 43 percent higher than the national average, and the number of people incarcerated  with a mental health issue in the last decade has increased 35 percent — for women, it’s 47 percent.

Drug and property crimes, like burglary and theft, were also identified as top drivers.

From its research, 25 policy proposals were suggested — the ideas were also the subject to hours-long advisory commission subcommittee hearings in December. Recommendations include:

• Establish pre-prosecution diversion for first-time nonviolent felony offenders
• Remove barriers to presumptive probation
• Increase judicial discretion for commercial drug offenses
• Change and reclassify statutes for drug and property crimes
• Streamline the parole process
• Establish policies that address gender-specific needs
• Reduce the maximum probation period that can be ordered
• Expand re-entry services
• Reinvest in community supervisions and transitional housing

Nevada Department of Corrections director James Dzurenda, who was in favor of the policy recommendations, said he has gone through justice reinvestment in two other states and has seen the benefit. “If we don’t change what we’re doing, we’re not going to do better,” he said. “It’s is so important that we do something now. If you do (justice reinvestment) correctly, it will work and we will be safer.”

Calloway disagreed with the majority of the recommendations. “Opposition is not even a word I can use. I’d say the word outrage,” he said. “These are a drug dealers dream come true.”

Both Calloway and Jackson argued California’s Proposition 47, which reduced nonviolent drug and property offenses to misdemeanors rather than felonies, resulted in an increase in crime. A recent study from the University of California, Irvine published in Criminology & Public Policy refutes that claim.

Amy Rose, the legal director of the American Civil Liberties Union of Nevada who supported the proposals, says the data compiled is further proof Nevada needs to make significant changes to the justice system. 

She added Nevada could go further. “I don’t think drug possession should ever be a felony,” Rose said.

All the recommendations will now be presented to legislators, which meet in Carson City next month.

Fines, fees and other reforms

Attorney General Aaron Ford, who also sits on the advisory commission and voted in favor of advancing the reforms, says the commission’s work is just one part of potential criminal justice overhaul coming in the 2019 session. “Other legislators are looking at other aspects of criminal justice reform,” he said.

At an event last week held by the Clark County Black Caucus, Ford, via skype, spoke alongside Assemblywoman Dina Neal, Assemblyman Ozzie Fumo, Assemblywoman Leslie Cohen and newly-appointed state Sen. Dallas Harris.

While Ford mentioned the Advisory Commission on the Administration of Justice’s work at that forum, the discussion focused on other criminal justice topics such as fines and fees associated with traffic violations, bail reform and legislative remedies.

“I think around the country, we are seeing these types of (reforms) being discussed,” said Leisa Moseley, a committee chair of the caucus who moderated the panel discussion. “These are the type of things affecting minorities and poor communities the most.”

Most of the conversation centered on fines and fees and working to convert traffic offenses from a criminal infraction to a civil one.

Neal says lawmakers are still determining the best policy recommendations and ways to separate those who can’t afford to pay traffic fines from habitual offenders who refuse to pay. “It’s still an open ended question being dealt with that has to be worked out,” she said.

Even if Nevada is able to convert traffic offenses from criminal to civil infractions, Neal said that can create other obstacles. “Then you open up the door to wage garnishment,” she said.

Moseley suggested there needs to be legislation that allows those who got a suspended license because of a traffic offense to qualify for a restricted license.

Fumo wasn’t convinced the legislature would convert traffic fines and fees from criminal to civil. “The reason is because traffic tickets fund the Supreme Court salaries,” he said. “We have to find a different way to fund our courts if we are going to do that.”

Unpaid fines for traffic offenses can turn into warrants, which lead to arrests and jail time. It also brings up another issue: bail.

“It doesn’t go unnoticed that we have 12 percent black population in Clark County but you have 90 percent (black) in custody,” Fumo said. He added it’s because judges “don’t let them out.”

Fumo, who proposed bail reform legislation in the 2017 session, will introduce new reforms in the 2019 session. While campaigning alongside former U.S. Attorney General Eric Holder in September, Gov. Steven Sisolak said he’s “willing to look at whatever the Legislature brings forward” to reform the cash bail system. 

“I believe this would pass and the governor will sign it,” he added. “If it does, it would save taxpayers millions of dollars over the years and help keep people out (of jail).”