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Begging your pardon

A cell that holds two inmates as seen Wednesday, Feb. 28, 2018 at the Florence McClure Women's Correctional Center. (Jeff Scheid/The Nevada Independent)

I’ve never met Deborah Clendenning and I don’t represent her, but having read transcripts and law briefs describing her circumstances, I know a lot about her criminal case. From my perspective as an attorney for four decades, a judge for a spell, and an advocate for those abandoned or ignored by our institutions in the interim, I can speak with authority that she does not belong in prison. In fact, it’s as clear that she should have never been sent there at all.

Yet, since 2015, this tiny, now 62-year old woman known as “Miss Deb” to her fellow (mostly younger) inmates has been languishing in the Florence McClure Women’s Correctional Center, the state’s only prison for women. She is imprisoned four-hundred miles from her former Fallon, Nevada home and family in an institution lacking any significant rehabilitative programming for her unique situation: A non-violent offense which led to her incarceration. She is serving her first conviction, ever, for any crime. Living, as it is, in a dehumanizing trauma factory that prison represents for so many.

As is true for all inmates in Nevada, Miss Deb seems relegated to the four lawful ways someone gets out of prison after a conviction without a court decision: (1) expire all the time calculated from the judge’s sentence; (2) gain the approval of the law enforcement-heavy Parole Board to let her out after a set number of years have elapsed; (3) get an audience with the Pardons Board, headed by the governor of Nevada, where pleas for equity compel a reason to end or lessen the sentence; or (4) death.  

Nevada is one of many states on the naughty list when it comes to untenable and uncontrolled mass incarceration. And while parole remains a useful (although perhaps too discretionary) measure to ultimately release people prior to the expiration of their full sentence (and always with conditions and supervision), pardons have the potential to be the more efficient, less onerous remedy for the tragedy of our broken carceral system — so broken that it comes as no surprise that check-outs by the grim reaper always outnumber those from the Pardons Board. 

Pardons found their way to the ballot this November in the form of approved Question 3, which altered the frequency of Pardons Board meetings and now allows members to approve a pardon by simple majority over an old system which essentially gave the governor veto power. By passing it, Nevada did something seemingly small but which potentially could be used in a big way for many inmates, including Miss Deb. Yet before this potential of the ballot measure is explored, the details surrounding Miss Deb are instructive.

Forgotten inmates

Florence McClure is situated on a cruelly ironic street named “Smiley Road” on the north end of the Las Vegas Valley, housing a beyond-capacity population of more than 1,000 women for terms of incarceration between one year and life imprisonment without the possibility of parole. Clendenning is one of those human beings, saddled with a 20-year sentence for non-violent theft. Her story is probably not unfamiliar to those who have or know someone struggling with addiction. It’s a story now hidden behind the secretive (by design) walls of a prison, as forgotten as the humanity that should not allow for such sentences in a modern age.

A bookkeeper for a major car dealership in rural Churchill County, Miss Deb was a problem gambler. That is not in dispute. Over the three-year period leading up to her arrest (and immediate confession and sincere expression of remorse), she stole money from her wealthy employer in furtherance of, and as a result of, her addiction and related inability to stop because of a disruption to her executive brain functioning. This science of the mind is not in dispute, either.

Like many problem gamblers who find themselves down a path that grows darker and deeper, she continued to gamble (in the open and with the knowledge of friends, neighbors and gambling operators and maybe even fellow employees) with ferocity to the point where she ultimately lost untold tens of thousands of her own money (really, all of it) and—by the court’s tally—$158,000 dollars from her employer, stretched over three years. Because of her disease, she confidently yet unrealistically believed she would at some point win enough back that she could make the situation right with the employer from whom she stole, and that she could move on with her life despite logging thousands of misspent hours in front of a glowing machine teasing her with dreams of wealth but ultimately taking her liberty.  

At her sentencing, her employer (who likely was reimbursed for much of the loss by his own insurance) was unforgiving and called for a harsh penalty of at least six years in prison as he conveyed feelings of “betrayal.” After bragging about how his business brings in 35 million dollars a year in sales, he said, “I understand how sorry she is, but I also have to say... (she) stole a lot of money, and this community is watching this, and as much as I hate to see her sit in prison for a long time, I need you to send a message that crime doesn’t pay.” 

Despite a law in place at the time that mandated a hearing to determine whether diversion to a treatment program was appropriate — her defense attorney (a former career prosecutor relatively new to the defense side at the time) failed to raise the issue – and because of a number of procedural barriers, she was sentenced to a minimum of eight years and a maximum of twenty years with no relief through the justice system to date. The sentencing judge summed it up by saying, “…there is a price to pay in this case. I considered probation, and I find it not appropriate.”

Despite “considering” probation and complimenting the arguments of defense counsel, District Court Judge Thomas Stockard gave Miss Deb what appears to be the harshest sentence any first-time offender for a problem-gambling related theft offense has ever received in Nevada.

Her legal appeals came up short mostly on procedural defects. She went before the Parole Board, but did not get relief. She is likely on a track to not even be considered for another parole release for years because of the great length of her underlying sentence.

A pardon?

A pardon is a lifeline that no rule or law requires; it can be used with equal effectiveness for the saint and the sinner alike. It helps us take a step back, or maybe a closer look, and its contemplation often leads the grantor to the conclusion that despite all the processes, the philosophy, the rules of law, the alleged due process and the arguably entitled “best system in the world,” a mistake (in the broadest sense of the word) was made — or that a different approach is equitably appropriate. It also is a proclamation that we shouldn’t leave the remedy of release to further deliberation. A pardon ends the suffering, the uncertainty, and in many cases, the torture of prison. 

Pardon power expertly wielded can be a lightsaber that cuts through the injustice of mass incarceration right here and right now. But even in its reformed form after Question 3, questions remain about whether it will be used in any different way at all. When recently given the chance to look for “compassionate release” candidates in Nevada prisons, the Department of Corrections took about five months to consider the question and came up with...two. People. Two people who met the qualification to simply be looked at for possible compassionate release out of 11,000 inmates. 

In the simplest terms, a pardon is designed as a completely discretionary act of ultimate kindness. States deal with pardons, or “clemency” (a sort of variation on the theme) in different manners. The sort of pardons most people are familiar with are in movie scenes where the death row inmate is strapped to a gurney with a priest giving rites when a phone suddenly rings to break the tension — it’s the governor and… the bureaucrat in the clip-on tie and sweaty brow shakes his head no and they throw the switch. Or sometimes they don’t. 

Of course, recently we’ve seen the President of the United States issue pardons under ultimate authority derived from the Constitution (or in other more formalistic ways) that were spurred by anything from a concerned Kardashian to helping out an old racist buddy who just needs a little help with a good lie on the golf course of life.  

So…good on you, Nevada. Whether by research, thoughtfulness, intuition or dumb luck, you did something in Question 3 that potentially can make a huge difference in a critically broken criminal justice system and possibly help people like Miss Deb. (I’m not convinced that voters, faced with a lengthy, complicated ballot where they first had to vote for president, congressional representatives, numerous down-ballot local legislators and more than 50 judicial candidates and four other ballot questions, really knew precisely what it meant.) 

A pardon has always been an ethereal last gasp of hope for so many inmates, but now the practice may finally be charged with new oxygen — if those on the Pardons Board decide to blaze forward with the increased compassion, equity and doing-the-right-thingedness that the law passed by Question 3 can provide. 

Question 3

So what exactly did you do, Nevada? You altered the Nevada Constitution with an amendment providing the framework for more meetings of the Nevada Board of Pardons Commissioners which is composed of the governor, the attorney general and all the Nevada Supreme Court justices. Now, they must meet at least four times per year when in some years past it’s only been once. You also made it less difficult to get a person on the board’s agenda for consideration of a pardon or commutation of sentence. This is good, as the last two meetings had ZERO inmates on the agenda and it's unlikely the next agenda (set to take shape before Question 3 goes into effect on November 24, 2020) will reverse course and have more than a handful (if any) inmates up for review. You also took away that super-vote, none-shall-pass power of the governor that has been used far too frequently in board meetings at which everyone but the governor felt mercy and equity should rule and replaced it with a simple majority. 

If we had a proactive, progressive governor committed to correcting the over-incarceration of humans in our State prisons (and the ones mysteriously shipped off to prisons around the country at taxpayer expense because we incarcerate SO MUCH), a constitutional amendment like Question 3 would have been unneeded. As it is, we now have empowered the other Pardons Board members to outvote a governor resistant to second-guessing judicial sentences or acknowledging that some people simply don’t belong in prison (or at least don’t belong there anymore).   

One way to look at the passage of Question 3 is that it provides a bold check-and-balance on a judiciary empowered to throw the book at people despite convincing evidence that prisons are not only obsolete, but that they cause more harm than good. Will the measure move the needle, given that more than 60 percent of Nevadans supported it? 

Well—being that I am not convinced that people know much about how pardons work, and seeing how there was no grassroots enthusiasm for the amendment beyond the vote—sadly, probably, not without more discussion and support. My hope is that some kind of progressive-conservative coalition dedicated to reducing the numbers of inmates emerges, otherwise Question 3 could be an empty measure. I am, however, encouraged that board member and Attorney General Aaron Ford has made positive strides towards at least measured criminal justice reform and seems genuinely excited by his role on this board. Perhaps he becomes a lightning rod. Especially as pardons can be so much more than they even are now. 

And here’s how.

Community pardons vs. inmate pardons

There are two categories of Pardons Board agenda items. First, there’s the (wildly limited) consideration of inmates who are basically asking for mercy or retroactive application of a new law, or who for some other reason bring their case to the board’s attention. Those are inmate pardons. The second group - community pardons - is made up of people who already are out of custody, sometimes for decades, who are asking to be forgiven for the offense and for a restoration of rights (usually gun rights) along with pleading forgiveness for acts for which there may be lingering complications related to a prior felony conviction in their lives.   

There is no problem with community pardons; they are relatively straightforward. People often apply themselves, but they are almost always better served using a skilled lawyer to prepare the application for them. Folks usually get years of exemplary behavior under their belts before they’re emboldened to ask for one. The Pardons Board hears dozens of these every time they meet (or, again, IF they meet) and often there’s enough good will for the individual that they get either a full or partial (with some restrictions) pardon.

The inmate pardons to date are a ghost town of justice. There are currently more than 11,000 incarcerated people in the Nevada Department of corrections. As it stands, it’s virtually impossible to get consideration for a pardon as an inmate because it’s a ridiculously complicated calculus to make it through the hurdles, the de facto qualifiers, and the political and policy hoops to gain relief. Looking at just the last 10 times the Pardons Board met, it’s clear it is not a favored practice to hear inmate pardon requests. 

Few inmates make it that far; and when they do, the inmate agenda items are dominated by those with highly-lauded lawyers like Kristina Wildeveld, one of a small set of Nevada lawyers who take on these kinds of cases. (Disclaimer: Wildeveld is the owner of the firm where I work as a lawyer and where I have seen, firsthand, the tragically high level of attention and advocacy needed to present a successful pardon application). Wildeveld has made a niche for herself as the main Nevada attorney to retain in order to maneuver the gauntlet to present petitions. Gov. Sisolak has even tapped Wildeveld to figure out how pardon power can be used for low-level marijuana community pardons; she’s also responsible for the presidential pardon from President Donald Trump for Jon Ponder, the controversial executive director of Hope for Prisoners. But without an attorney like Wildeveld as their advocate, how can inmates hope to secure a second chance?

Well, they could fill out all the paperwork themselves and hope that someone actually reads it and thinks “yeah, this person absolutely doesn’t belong in prison, let’s consider a pardon.” There’s no one tasked with assisting them, and inmates are not encouraged or helped in the effort and are often encouraged just to wait for parole eligibility.

Why not just let parole proceedings take their course? 

Unless an inmate is sentenced to life in prison without the possibility of parole, there is an opportunity to appear before the Parole Board after a set period of time has gone by. These “parole consideration dates” tack to the range of sentencing that has been established by the Legislature and implemented at the discretion of the judge in court. In Nevada, that means when a judge says “you’re going to prison,” the judge also chooses a range of years before eligibility for parole can take place (the lower number) and how long the full term can last before expiration (the higher number). 

In Miss Deb’s case, she received two consecutive four-to-ten year sentences for an aggregate of eight years on the low end and twenty years on the high end. 

Setting aside for a moment the fact that Nevada’s mandatory-minimum sentence schemes for incarcerated individuals have their origins in a devious design to perpetuate slave-labor despite the 13th Amendment to the U.S. Constitution, the system does at least give some opportunity for a paroled release. The difference between parole and pardons, then, is the structure of the proceedings, how long one has to wait and the constraints imposed even after relief is afforded.

That’s why, in theory, pardons are better than parole. Some individuals go before the parole board multiple times over decades before release. And a denial of parole can last up to three years in most situations before a person can try again. With pardons, elected officials review the documentation provided by the inmate, as well as a report from its own administrative staff. They also hear from the inmate, the inmate’s advocate and the prosecutor, often resulting in a spirited, public proceeding with questions, pontifications, philosophy and prayers for mercy all mixed into the discourse. (It should be noted that victims or other individuals affected by acts of the inmate are allowed to address both proceedings either in writing or in person and often do.)  

Unlike the Pardons Board comprised of elected individuals, the Nevada Board of Parole Commissioners (aka the Parole Board) consists of paid (more than $80,000 a year plus benefits) gubernatorial appointees who consider several factors including an inmate’s behavior in custody, seriousness of the crime, victim input, expressions of remorse and plans upon release. The parole board is tough, too. Only about half of the people up for parole get it. 

Many of the sitting members are new but their biographical information suggests the board leans heavy with people who worked in prisons or as probation officers. There is no information as to the philosophies or empathy levels of these individuals responsible for the thumbs up/thumbs down determination at issue.  In the past, the commission has been called out for having too many members affiliated with prisons in violation of state law. That said, the Nevada Legislature decided that the board should primarily consist of people with law enforcement, prison, investigatory, prosecutorial or victim rights experience. There is one spot available for someone with “social work or therapy with emphasis on family counseling, domestic violence and urban social problems” — but it’s difficult to determine which, if any, current commissioner fills that role given a review of their bios.  

In light of the impetus of expanded hearings for pardons under Question 3, the Legislature should consider expanding the Parole Board to contain members of prisoner’s rights groups, defense attorneys, PTSD specialists and, honestly, anyone who understands what justice means outside of a harshly punitive model. 

I should note, too, that unlike pardons, paroling an individual comes with sometimes arduous conditions and requirements (including, sometimes, lifetime supervision) where a violation, even if it is relatively minor, could result in being re-incarcerated. This includes, theoretically, the failure to pay back restitution to a victim or to pay the fees for their supervision. And even if one is paroled, there is no guarantee of release as Nevada has been struggling with that transition for years and many people are kept in custody well after their release date.

Finally, as parole rulings are non-reviewable, their denial tends to be arbitrary and sometimes even capricious. Minor transgressions, like hoarding apples or failing to precisely obey the seemingly mundane orders of a guard while in custody, get amplified to extreme importance when it comes to consideration for release. When an inmate is in custody on a major crime, that fact alone virtually seals the fate of what the prisoners euphemistically call a “dump”—meaning a sparse chance at parole. That’s why it’s no surprise that one of the reasons often given for denying an inmate a spot on the pardon board’s agenda is a deferral to the parole board. But as seen, it all lands on the same spoiler: Nevada is not a forgiving place, and all systems that could possibly decrease the prison populations are ineffective and outright broken.

As for Miss Deb? She was given an early parole hearing because her sentence was divided into two consecutive parts, but still does not appear to have been granted parole and thus still awaits a (currently unscheduled) parole hearing on the balance of her sentence.

Now that Question 3 passed, who should go in front of the Pardons Board? 

I obviously think Deb Clendenning should be on the next Pardons Board agenda and should simply be released after doing far too much time for a non-violent offense related to a mental health condition. I am certain there are others similarly situated, or with equally compelling stories. Few in prison come without a backstory worth exploring, or a series of missteps which were significantly shaped by failures by or lack of access to our community safety net institutions. Most importantly, the subset of individuals with no capacity for embracing a healthier life outside of prison if thoughtfully given the opportunity is so small it’s barely worth mentioning in this context.

Miss Deb came to my attention because of my work in problem gambling legislation and litigation. I reached out to her family and asked whether there was a place for their mother in their house, and through tears and the faintest resolve of hope came the obvious answer… “of course, we just want her home.”  

The governor — or attorney general’s staff or interested citizens or advocacy groups — should regularly scour the ranks of the incarcerated to make lists of people that deserve a new look and evaluation. This includes first-time offenders, the elderly or infirm, the rehabilitated, people with excellent re-entry options, folks who received too harsh a sentence from the onset, and juvenile offenders who have already done decades of prison. Many of them should be thought of as potential pardon recipients. Let them at least make a pitch for a pardon or commutation (lowering) of sentences. 

These shouldn’t be the only categories; there are likely scores of other categories of identifiable groups by any sane mix of criteria that could help us proactively reverse the trend of mass incarceration, and that’s BEFORE we even start tapping into the choppy waters of people who may very well be innocent or who were convicted because of the systemic racism inherent in a system disproportionately represented by people of color. (This last point could be a full and important detour of its own; Black people are overrepresented in Nevada’s prison population by a factor of almost four times their percentage of the state population.)

No matter the group, or individual, it’s ultimately about mercy. It’s about forgiveness and understanding. It’s about equity and hope and the inequity of mass incarceration. 

Sadly, when given the chance to use the Pardons Board to help folks – especially during the recent pandemic – there has been a strong reluctance to do anything, and by the governor in particular. Even after presented with lists of individuals deserving of consideration and with viable re-entry and safety plans (Miss Deb was on one of those lists), he not only refused, but as previously stated here, he has since refused to allow a single inmate on a Pardons Board agenda — even as Covid-19 devastates the helpless inmate population.

Hopefully that can change, too.

In conclusion

However the voters on Question 3 got there, it seems reasonable to assume that there was a realization that some number of people need to be let out of prison. Deference to the loaded Parole Board is weak sauce; consideration delayed is justice denied. We must call on the board to fill its docket with candidates, and to proactively scour all the cases where relief can and should be granted — not merely take a look when a case is presented on a silver-platter by a seasoned advocate.

We should free Miss Deb. She’s 62 years old and hundreds of miles from her people and in prison for a crime that wouldn’t have happened but for her addiction. She’s serving an extraordinarily long sentence that demands a review and acknowledgement that it shouldn’t have even been imposed but for resistance to the science of problem gambling disorders.

We should free all the Miss Debs. A civilized society should at least be open to such considerations. Taking liberty away should never be a consequence of chance surrounding how lost or angry a victim is, how cruel a judge is, how a ham-fisted prosecutor slathered out criminal exposure, or whatever status quo our so-called system of justice has been afforded as legitimate in the past. Understanding we are a society of laws, are we not also a society of hope and optimism? Are our systems infallible? 

A day in prison is more than most people should ever have to suffer. Years in prison provide diminishing returns to society by further damaging people who already were suffering because of a lack of help for their true needs as they subsisted in a culture of constant fear, degradation and indignity. There is no science that suggests even the most carefully parsed term of incarceration creates a net benefit for anyone other than the vengeance-seeker engaged in the theater of justness or ambiguous “messages” to society that crime doesn’t pay — as if a person with an addiction in an alley is thoughtfully contemplating cases like Miss Deb’s before breaking into pharmacy to feed his habit. Even eye-for-an-eye advocates find that the power to incarcerate provides little that resembles closure, let alone satisfaction.

There’s every reason in a fair society to carefully reevaluate the sentence and situation of every single Nevada inmate on a regular interval. There is no valid purpose in keeping the weak, the sick, the repentant and the oppressed away from a society that in many ways failed them before they ever entered the labyrinth of criminal “justice.” There is no justification for allowing the continuation of obvious inequalities inherent in drug laws, mandatory minimums and misused statutes. We can give real meaning to Question 3. We have the power to do good without fear or regret, to offer compassion and clemency to the brothers and sisters we so callously placed in chains and forgot — or never saw from the start.

Dayvid Figler is a criminal defense attorney based in Las Vegas. He previously served as an associate attorney representing indigent defendants charged with murder for the Clark County Special Public Defender’s office. During his legal tenure, he served a brief appointment as a Las Vegas Municipal Court judge. Figler has been cited as a noted legal expert in many places including the New York Times, National Public Radio, Newsweek, USA Today, Court TV and the Los Angeles Times. His award-winning radio essays have appeared on KNPR as well as on NPR’s All Things Considered program.

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