For a few years now, Nevada has attempted to come to terms with disparities within its criminal justice system and rectify wrongs that have led to rising incarceration rates.
The move is a necessity as America is also coming to grips with the staggering reality that it incarcerates far more of its citizens than any other country. The United States holds 5 percent of the global population, and 25 percent of its prison population.
“We’ve come to realize that the American criminal justice system is abusive and coercive,” Fikisha Miller, said a Clark County public defender with two-decades of legal experience. “That’s not debated anymore.”
The question, posed in Nevada and the nation, is how do you fix what is wrong?
At least nine public defenders running for judicial seats in Southern Nevada think any meaningful solution has to include balancing the benches.
“Criminal justice reforms aren’t going to stick if we don’t have players in every part,” said Carli Kierny, another public defender running for District Court Judge Dept. 2. “If criminal justice reform is something Nevada is serious about, then you need people involved every step of the way.”
Miller, who is running for District Court Dept. 19, said it’s not usually public defenders who run for judge but rather people from larger law firms or the district attorney‘s office.
“Historically speaking, there hasn’t been a lot of public defenders running for judge,” she said. “Part of it is the nature of our work being intense and we don’t have the time. We also don’t have the money. We don’t have that private law firm money.”
But the criminal justice landscape has been changing in Nevada.
At the 2019 Legislative session, lawmakers put forward a robust criminal justice agenda that proposed reforming the bail system, decriminalizing traffic tickets, compensating those wrongfully imprisoned and providing identification for inmates upon release. The most notable bill making changes to policies, state law, re-entry practices and probation goes into effect July 1.
While some laws were passed, others didn’t stand a chance. Legislators, attorneys and advocates argued more meaningful reforms were minimized and watered down in efforts to appease lobbyists from law enforcement and district attorneys.
Many previously told Nevada Current they worried the Senate Majority Leader Nicole Cannizzaro, who works for the Clark County District Attorney’s office, stifled prospective criminal justice legislation. Examples included a bill to allow parole violators to avoid a hearing by pleading to the offense and receiving house arrest as well as legislation to abolish the death penalty.
Months before the session, in the June 2018 primary, incumbent Clark County District Attorney Steve Wolfson was challenged by local attorney Robert Langford.
The race wasn’t uncommon. Nationally, progressive attorneys have tried to oust incumbent district attorneys as a way to effect policy change from within the office, as opposed to waiting for lawmakers to pass legislation.
Langford lost, but the reform efforts continued.
Even if he had won, there would have been other obstacles.
Kierny points to Larry Krasner, probably the most notable case of a progressive local attorney who challenged, and won, against an incumbent district attorney and began reshaping the criminal justice landscape in Philadelphia.
Yet he still faced resistance from judges.
“We’ve changed the laws and we try to change the prosecutor,” Miller said. “Now it’s time for the judges.”
While many are pushing for changes within the district attorney’s office since it has prosecutorial discretion to pursue charges and seek the most punitive consequences, Miller said it is still judges who often direct how, or if, justice is served,
“Sometimes, it’s not the prosecutor I worry about,” Miller said. “I’ve literally had experiences where some judges are doing the prosecutor’s job. The prosecutor will speak and the judge will correct them and say, ‘I think what you meant to say was this.’”
Tegan Machnich has worked as a public defender for almost a decade. Even with progress that has been made, she knows the fate of her clients, poor and often people of color, depends heavily on the judge rather than the details of the case.
“There are judges that if you pull them (for trial) you know you’re not getting a fair trial,” she said. “It shouldn’t work like that. We need a more balanced bench.”
Machnich, who’s running for District Court Dept. 15, said it isn’t about using the bench to legislate policy but rather using discretion to determine if diversion programs, drug rehabilitation or mental health services are better alternatives than incarceration.
Some running want to specifically oust judges they say are causing harm.
Kierny decided to run against incumbent District Judge Richard Scotti after he presided over a case. During jury selection on one of her cases in 2017, a potential jurist said she didn’t know if she could be unbiased during the case.
Balancing the bench isn’t just about having judges from different legal backgrounds, but also having people in the role who understand the roles race and socioeconomic status play in the criminal justice system.
Nevada is a minority-majority state. Miller said the judicial system doesn’t reflect a state that is composed mostly of people of color.
It’s not just that courts don’t reflect the communities, Belinda Harris added, but also that judges often lack the “cultural competency” they need to preside over cases and understand where people are coming from.
“How can a judge be fair and administer the law properly when they have no idea where the person who is appearing in front of them is coming from?” asked Harris, who is running for North Las Vegas Justice Court Dept. 3.
While Nevada has struggled to collect, and report on, how much of a factor race plays in the criminal justice system, national data repeatedly show that Black and brown communities are disproportionately impacted.
“Most of the people in custody, the people I serve, also look like me,” Harris said.
Born and raised in North Las Vegas, Harris grew frustrated that things aren’t changing the way they should.
“It’s like that quote, to be Black in America is to be in a constant stage of rage,” Harris said, paraphrasing a James Baldwin quote. “I felt myself getting there. But I don’t like to be a complainant. I like to identify the problem and help solve the problem.”
If she wins, it would also be a milestone for Southern Nevada, which she said has elected few Black women. “All the Black judges we have here have been appointed and then retained and re-elected,” Harris added.
Many of the candidates aren’t just running against incumbents and flaws within the criminal justice system exacerbated by certain judges.
They also have to face the reality that judicial elections don’t get a lot of attention, and people often don’t research candidates to determine how to vote.
Harris said people don’t realize the importance of a judge until they are forced to face one.
“You are more likely to have an interaction with a judge than you are with your congressman or senator,” Kierny added.
If some of the public defenders win, Miller said it could mean significant, positive changes for Southern Nevada.
“Not only does it change the composition of the bench to have a variety of views, it also means incumbents who stayed or didn’t have an opponent might realize our community has moved past from where it was,” she said.
The primary election is June 9.