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Scales of justice. Image via iStock.com. Credit: BCFC ID 681164016.

Las Vegas (and by extension the whole state of Nevada) is not good at reckoning with the havoc it wreaks. We have our heads in the desert sands when it comes to all sorts of things. Examples include doing very little about our bottom-list status in K-12 education and charitable giving, top-list status in lack of affordable housing and per capita homelessness, and WTF-list status in not devoting resources to mental health treatment and resisting basic reforms to a criminal justice system that so many people seem to agree is broken.  

On that last point, and as predicted, the resistance and opposition to any change to the current king-punishment regime — and the power that flows from a virtually unchecked prosecutor-oriented system of “justice” — has been fierce, focused and effective. As such, at least for this go-around, Nevada will continue to (mostly) not make much of an effort towards eliminating the causes of criminal behavior and will leave untouched the institutions that favor retribution over assistance and re-acclimation (and that routinely sidestep debate about why so many people wind up in our prison system). There are so many people in our prisons, in fact, that Nevada has to pay questionably humane private prisons in other states to house our overflow of inmates.

While some are having thoughtful and nuanced conversations about getting rid of prisons altogether as being a draconian, our inefficient and harmful approach to community safety (not to mention basic humanity) will continue to plod along. Why? Well, because like most other places, we tend to be distracted by what we love and in denial about what we lack. We have a pretty great hockey team, right? I mean, it’s not like Rome is burning or anything.

Still, I cannot hide my disappointment that the anticipated elimination of the death penalty as one of the low-hanging fruits of reform for our community not only didn’t make it to the governor’s desk – it didn’t even make it out of committee or even receive any public debate. This, despite both the legislative and executive branches being controlled by Democrats. How could this happen?

As states around the country are in one form or another limiting the use of death penalty, Nevada has once again ducked having even a conversation about it. Whether you support the death penalty in application (or even concept), or whether you are against it or on the fence, how can you say in 2019 that the use of the death penalty in our state is beyond even discussion?

Especially, and follow along with me here, as Clark County (1) seeks the death penalty in a disproportionate manner, (2) has one of the highest reversal rates for prosecutorial misconduct when they actually do convince a jury to impose the death penalty, (3) doesn’t even have the proper drugs to execute inmates, and (4) pays extraordinarily large amounts of money to maintain a death penalty system when the rest of the issues here remain in critical status.

So what happened?

How did the effort to kill the death penalty die before it even made it off the starting blocks?  

SB 246 and AB 149 were both bills that were introduced this session to abolish the death penalty in Nevada.  Both were sponsored by state Sen. James Ohrenschall and Assemblyman Ozzie Fumo, both of whom are criminal defense attorneys and, like myself, have presumably seen the shortcomings of the death penalty up close and personal.

Senate Bill 246 was introduced in the Senate on March 1. It was referred to the Senate Judiciary Committee, which is chaired by Senate Majority Leader Nicole Cannizzaro, who works as an attorney for the Clark County district attorney’s office. The Clark County district attorney’s office places amongst the 10 counties in the entire United States which comprise 50 percent of the entire death row population in the nation. (Oh hey, we’re number 6!) For reference, there are over 3,000 counties in the United States and 30 states that have the death penalty in some form. The bill never received a hearing. It died on April 12 after failing to pass through the first house committee by the deadline.

AB 149 was introduced in the Assembly on February 15. It was referred to the Assembly Judiciary Committee, which is chaired by Assemblyman Steve Yeager, a former criminal defense attorney who’s now in the civil sector. This bill similarly never received a hearing and died on April 12 when it failed to pass through the first house committee by the deadline.

Long story short, the bill was unceremoniously killed by Democratic leadership. Presumably either Cannizzaro or Yeager or Speaker Jason Frierson could have secured its advancement, but nary a convincing word was uttered publicly about why this measure got totally Black Knighted. When asked why the death penalty didn’t make it into any debate, Cannizzaro told the Associated Press, “I think we’re really trying to focus on some of the criminal justice reform ideas that I think really can help improve the system for very real problems that are happening right now.” In the same article, Yeager blamed the Senate and also claimed his Assembly committee “didn’t have the time” for a hearing.

Here are some completely unbiased and opinion-neutral theories about what really happened.

(1.) THE DEMOCRATS ARE TOTALLY FREAKED OUT THAT PEOPLE WILL HATE THEM WHEN THEY DO THE RIGHT THING ON CONTROVERSIAL TOPICS EVEN THOUGH THE DEATH PENALTY IS NOT A LITMUS TEST IN NEVADA TO ANY DEGREE

So much for a blue wave. Or maybe our blue is more of an ultramarine or teal? Nevada is weird that way. For instance, some unions seemingly argue against the wide availability of health care. And the Democratic governor is appointing career prosecutors to replace liberal and moderate judges in the time of criminal justice reform. And the Democratic Senate majority leader voted against a tenant rights bill. And then, “Wow, they’re not even going to hear the death penalty bill” to the chagrin of the state’s progressives.

We’re maybe just a little upsy-downsy, sometimes. I understand wanting to stay in power, but is there really a fear that the populace will suddenly turn on them if they do the right thing? Dems outnumber Republicans in the small state of Nevada by almost 69,000. Even if the Democrats found great worry in the oversimplified and remarkably basic one-question poll of support of Nevadans sponsored by The Nevada Independent, they have to know that deeper probes would have shown a remarkable ambivalence — and even opposition. But rumor indeed has it that the poll itself was influential enough to shock the more, erm, moderate Democrats into apoplexy on this important issue.

Certainly, some Democrats were also mindful of other articles in this here publication, laying out the numbers related to the death penalty that look so very bad (and inescapably expensive) for us, or even to op-eds from conservatives conceding the death penalty doesn’t work for Nevada.   And why doesn’t it work? Mostly because too much discretion is given to the D.A. (specifically the Clark County District Attorney’s office) to seek it.

Oh, sure, the D.A.’s office will say they reserve the death penalty for the so-called “worst of the worst” but since 2005, the Clark County D.A. has sought the death penalty 175 times. So either Clark County has a serious worst-of-the-worst problem, or the Clark County D.A. has a Princess Bride “I don’t think you know what that word means” problem. Either way, how exactly does keeping the death penalty off the discussion table help?

It doesn’t.

Perhaps the Dems should do their own polling. Ask questions like: are you in favor of using the death penalty for every single murder case? Because despite a supposed constitutional limitation that it can only be used in narrow circumstances, every single first degree murder case qualifies for it here in Nevada (I challenge anyone to show me a first-degree murder case in Nevada where it doesn’t) — even murder cases where the defendant didn’t pull the trigger.   

And how about a follow-up question like:  If you said “support,” does your degree of support drop when you learn about the 156 death row inmates who were later exonerated for their alleged offenses? Or questions like: Are you in favor of allowing a district attorney’s office known for grave misconduct in death penalty cases to seek the death penalty even when it’s really expensive and time and time again the cases get reversed on appeal and then cost even more money to retry, meanwhile the victim’s families suffer year after year because that means they have to go through the trial process again? (Maybe too wordy?)

Maybe just a multiple-choice poll. Something like:

What is your main reason for supporting the death penalty?

  1. Dissuades criminal behavior. (Not true)
  2. The Bible tells me so. (The Bible also supports stoning for blaspheming the name of the Lord; see also: turning cheeks.)
  3. Vengeance. (Not a good thing)

Followed up by: How upset do you get if a bad person who’s not the worst-of-the-worst gets a non-probationable life-in-prison sentence instead?

Having participated in more than 100 murder cases, including more than a dozen death penalty cases, I can safely say that the above three answers are the top three reasons people claim they support the death penalty. But when you get into the weeds of these reasons (as we do in jury selection), it quickly becomes clear that even the slightest amount of discourse on these reasons uncovers a lack of serious thought and an actual comfort with life-in-prison, once it’s explained. In other words, most people knee-jerk support the “concept” of the death penalty, but the practicality isn’t usually considered (until it is pointed out):  the disproportionate per capita impacts on people of color, the lost stat that a person is more likely to get the death penalty if they kill a white person.

The Dems are sprinting away from nothing, here. There is PLENTY to discuss with our rough record on using the death penalty for all the wrong reasons and never implementing actual sentences for all the wrong reasons and, well, why punt…? What are you running from?

(2.) SCOTT DOZIER KILLED HIMSELF

Scott Dozier was the odd death row inmate who begged the state of Nevada to kill him, but not without complications. Foremost of those “complications” was the mess surrounding the use of illegal and/or expired chemicals to do the deed. It became a time-consuming, expensive and embarrassing cluster for the state, made more bizarre by the articulate Dozier’s penchant for media interviews. Interviews, by the way, where he maintained his innocence, but also castigated the whole process.

Week after week it would all play out in the Nevada courts, adding to the pressure on the Legislature to clean it all up. That ongoing situation would have hastened discourse, of course, but then… Dozier let the air out of the balloon by taking the matter into his own hands. He killed himself. How very disappointing that he’s dead, right, just not by the means we wanted him to be dead – strapped to a gurney being injected with unregulated chemicals shutting down his various bodily functions one by one.

Psychotic much, Nevada?

Anyhow, once Dozier died the pressure to fix the Dozier situation died and so, no death talk this session. Sowwy.

(3.) DEM LEADERS/D.A. EMPLOYEES NICOLE CANNIZZARO AND JASON FRIERSON FEEL COMPELLED TO MAINTAIN THE DEATH PENALTY AS A SICK AND TWISTED WRENCH IN THE D.A.’S TOOL BOX

Conflict of interest-ing! Separation of power-trips! Sure, Nevada boasts a citizen Legislature where all vocations and inclinations are represented. And for that sacrifice, these citizen lawmakers are compensated with something like $150.00 dollars a day plus a per diem. Compare that to, say, their salaries as district attorneys (Cannizzaro, $105,000; Frierson, $122,500 — before benefits) and you can’t say there’s not a conflict issue.

Both leaders absolutely should have expected serious questions to arise about their impartiality when it comes to advancing legislation that bolsters their jobs; or in this case, unceremoniously killing legislation that would otherwise fundamentally change the way their offices have done business for decades. In other words, perhaps Democratic leadership shouldn’t be so freewheeling about participating in processing legislation on which their ACTUAL, PAY-THEIR-REAL-SALARY, I-CAN-FIRE-YOU boss has made his position very clear. Steve Wolfson (and his assistant deputies) want the death penalty in their toolbox. They’re really, really attached to it.

I’m kind of shocked that Cannizzaro and/or Frierson didn’t even grab for the easy cover of a less-than-stringent ethics opinion suggesting that it’s OK for them in their leadership roles to kill legislation that would be upsetting (at the least) to their work boss.  

And I’m not the only one who feels this way. A defendant looking down the barrel of the death penalty from the Clark County district attorney just filed what amounts to a lawsuit advancing the idea that by failing to recuse themselves, Democratic leaders have so seriously interfered with the process that it’s unconstitutional to further allow a death penalty at all. We’ll see where that goes, but if the lawyers representing the defendant get their hands on any memos about the death penalty from leadership at the district attorney’s office directed at their employees, things could get interesting. (I can’t imagine the D.A. isn’t at least a little worried; the lead attorney behind the litigation is one of the winningest criminal appeals lawyers in Nevada history — Clark County Special Public Defender JoNell Thomas.)

In any event, and in addition to all the reasons listed in this opinion column, a report by the Fair Punishment Project lays it all out in many clear and data-supported ways: the Clark County district attorney should not be trusted with the death penalty. So why are two Clark County district attorneys allowed to fully protect it in the Legislature without having to answer to anyone?

Even if a full-on ban wasn’t in the cards, reforms and limitations would have been very helpful. Existing Nevada law allows for the death penalty in way too many categories. Like, 15 categories (with subcategories). Like, “the murder was committed by a person to receive a thing of monetary value, or robbery, or arson” and also “the murder was committed at random without apparent motive.” So, like, if you had a reason, or didn’t have a reason, it’s all the same. That, at least, should be discussed. Or, how about saying the D.A.’s office must cap the number of death penalty cases it can seek so it is forced to be more selective?

But it’s quite clear the Clark County DA wants no limitation on the ability to seek the death penalty, and that it got cover for its desire from well-paid Democratic leaders — with no public discussion despite incontrovertible data that death row convictions are often wrong — which suggests that maybe the prosecuting death-seekers are actually sometimes getting away with….you know what.

Dayvid Figler is a private 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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