If there’s one thing we can all agree upon at that familiar Nevada intersection of politics, justice and abject insincerity is that 2021 was absolutely NOT the time for elected officials in the Nevada State Senate to vote on, let alone, discuss, the end to the death penalty in our state.

Why?

“Well first,” said all the people from the same party with the same, supposed political leanings who are in charge of creating paths without interference from anyone since they control all levers of government, “there wasn’t a path.”

“And second,” continued those same people despite seeming to acknowledge the death penalty is costly, ineffective, racist, exploitive, oppressive and immoral, “you don't need a second reason. Nevadans are supposed to accept that when those of us who control the river and boat and the crew and the weather and time and space (at least this legislative time and space) say that the trip is going in a different direction than logic and compassion dictate, you don’t ask why.  Even if it’s a trip to the execution chamber.”

But…  

“There just wasn’t a path. The time just wasn’t right. Maybe after we have more time to do whatever we would need more time to do that we didn’t do before even though we have all the time we can talk about it, like maybe in 2023 or 2025, or after we kill everyone on death row, or something, we don’t know, there wasn’t a path in 2021!”

But… you didn’t even discuss it in the Senate?

“Hush,” they continue suggesting more people or data needed to be heard from even though ALL the data was received at the Assembly hearings and ALL the people in support, opposition and otherwise were given lengthy opportunities to make the same points they’ve been making for decades, “we told you there wasn’t a path!”

SO WHAT COMES NEXT?

Apparently, there wasn’t a path in 2021 for a discussion of the death penalty in the Nevada Senate. Even the governor of Nevada, who has previously indicated that he is against the death penalty and cried at a screening of a movie showing the inequities of the death penalty, said he wouldn’t sign any bill since there “wasn’t a path.”

Sidenote: you ever say a phrase so many times that it loses all meaning?

So, since there wasn’t a path, what comes next?

Do advocates somehow compile even more statistics of prosecutorial misconduct, wrongful convictions, inequitable application, lack of oversight and expense?

Unlikely, since they pretty much kitchen-sinked all the indisputable data already and presented it. Nevada (and in particular, Clark County), is undeniably, provably and pathetically horrible on every single measure of an ability to handle or utilize a lawful death penalty. They are, however, extraordinarily good at using it to force plea negotiations in a despotic manner and feeding the bloodlust of vengeance seekers who only care about hurting a person who hurt them with the ultimate power of destruction.  So yeah, nothing the opponents are going to do with data or evidence is going to help forge a path.

Is there a concerted effort to defeat these failed “pathmakers?”  

Despite the posturing of the democratic socialists, only maybe in charge of the Democratic Party in Nevada, it’s unlikely that those who blocked the progress of a death penalty repeal will be targeted with more progressive candidates. That’s because of the ever-present fear by the party that if they don’t stand together they will simply lose their majority; the majority, after all, which allows them to make…paths for legislation! Also, the fear that any efforts might result in back-benching or marginalization of a legislator’s efforts to do what’s important to that legislator and their constituents. Rarely will Nevada politicians turn on each other unless it’s pretty much the tail end of a financial or sexual behavior scandal – and even then, mostly just ”troubled,” “saddened” and “disappointed.” To take positions against other members for failing to take action on important measures would be unprecedented.

No one responsible (or silent against those responsible despite presenting themselves as great abolition advocates) will lose a primary or be heavily targeted in any significant way over this. No one will involuntarily leave their position. Nothing will alter the trajectory or agenda of those in elected “leadership.” There will not be a coup or an official call-out-people-by-name censure on this highly contentious issue since there hasn’t yet been any such action or movement.   

Is it important to at least find out why any death penalty reform just faded away?

Everybody deeply interested or involved in the death penalty “debate” instinctively knew it was foolhardy to think that the two employees of the Clark County district attorney’s office who also happen to be the leader of the Senate and the chair of the Judiciary Committee (Nicole Cannizzaro and Melanie Scheible, aka Path-maker-1 and Path-maker-2, respectively) were ever going to allow the death penalty debate to advance. Or that they will in the future.  Not when their boss (and the association of district attorneys) and most of their colleagues (some of whose bad behavior is one of the core arguments for repeal) all seemingly LOVE the death penalty by way of their testimony.  None of them even pretend to utter even the slightest concern or hesitancy in exercising the ability to obliterate a human life - as though they had some sort of complex leading them to believe their acts of killing are immune from the same judgment and scrutiny that they render upon the condemned.  

And while a convenient response (read: deflection) when these two (or really anyone else) gets asked “why no debate” is (beyond that whole “path” nonsense) Gov. Steve Sisolak wouldn’t sign ANYTHING they could come up with in the 2021 session advanced to him - that’s a smokescreen.  

The governor didn’t say he would veto, he just said enough to apparently end debate. He was intentionally, some might say calculatingly, ambiguous. He said he couldn’t support any bill that didn’t allow the death penalty...sometimes...for really bad things or people or something. This, of course, is antithetical to an intellectually honest discussion over the reality of the death penalty. The argument over the death penalty isn’t about how it’s being misused to execute really good people who do really good things. The argument is how even though it's ONLY used against first-degree murderers whose aggravating circumstances outweigh any mitigation -- it still operates in a manner that is irrefutably imprecise, ineffective, racist, wrought with invited error and misconduct and for those who care about budgets and money - ridiculously expensive. If you’re against the death penalty (as the governor has said numerous times before in public) and if you acknowledge the flaws of the death penalty in application (as the governor has said through tears in at least one private screening of a death penalty film), there simply isn’t a genuine space for an absolute shut-down of debate that the pathmakers claimed ended it. 

Figuring out why the governor flatulated this smokescreen that benefitted Path-makers 1 & 2 certainly begs for an exercise in political analysis, but where to start? None of the discussion was public. Any hypothesis about horse-trading, protectionism or even a view at the time about his own vulnerability against a self-proclaimed tough-on-crime opponent in the next election cycle could never be verified. What does seem clear is that the fix was in prior to the session even beginning.   

There are a host of reasons – obvious and/or speculative – which would be enough for oddsmakers to have called the defeat of the measure a consensus bet  before the first bill draft was set to ink, let alone way into the session when the governor decided to pipe up.  But again, the most direct and simple reason can’t ignore that a certain Clark County district attorney who could theoretically fire or demote Path-makers 1 & 2, publicly came out in a very zealous manner in favor of allowing the death penalty to continue.

As such, the status quo will forever be that there is not a path. No one is going to take responsibility for the measure dying. No one is going to call out those who killed it. No one is going to call this all a sick game with people’s lives and the sanctity of striving for a more moral system in the balance. No one is going to bother with fixing pathmaking for these sort of hot-button issues in the future. It's done.

Which leaves us with...?

Looks like the only path on the table was suggested by death penalty proponent and guy pictured in a tuxedo for a panel to “discuss” racial justice when his office is responsible for so much racial injustice, DA Steve Wolfson.

In a recent talk, after agreeing with the governor that “it wasn’t the right time” (wait, what about paths…?), he suggested bringing the issue to voters.  Wolfson said, “What I would like this community to consider, potentially, is a referendum. Let's bring this issue before the voters because we all hear that more Nevadans still favor the death penalty….”

Well far be it for me to think that voters can’t handle nuance or separate the emotional release of having the option of killing a “bad guy” from all the overwhelming evidence that the death penalty is a profoundly stupid thing to have in a civilized society for one million reasons. I mean if YOU read this far, you probably figured it out, but really how many people will do a deep dive into the pros and cons of a death penalty YAY OR NAY on a ballot? 

Now I’m not saying Americans are inherently violent, hyperbolic and/or vengeful - but whoosh -- have you ever heard of Twitter?

I mean since it has been allowed again since the 1970s, the death penalty is limited to first-degree murder but is there any doubt that in the vaccuum of “gut check” with no data, stats, indicators of disparity based on status (race, ecomonic, national origin), etc., there aren’t an overwhelming number of people who would prefer to give the death penalty for ANY crime that touches them. Going back to Twitter, it seems a lot of people sometimes call for the death penalty for even the most minor of offenses and regularly for virtually anything concerning ANY conduct that impacts children, old people, animals, police officers, homeowners in their own home and on and on.  

Which is why we typically leave the interpretation of what is working or not working for the dispassionate benefit of the community to the legislature and well…. Yeah.  Given the opportunity to hypothetically and without getting their own hands dirty with the yuck yuck of physically extinguishing a human soul like some….murderer, I’d venture most Americans who haven’t given much thought to the priority of the death penalty would continue to not give much thought to the death penalty and excitely vote “KILL ‘EM ALL”; and if they could, an alternate measure to watch them unbox the lethal cocktail!

See, all other arguments aside, what does the death penalty do other than making someone think they feel good by resorting to the same violence that made them feel bad – just directed at the condemned. And once the condemned is dispatched to another place (hell, apparently, the preferred destination of most death penalty advocates for even more suffering), what happens next? Studies show it doesn’t move the needle on deterrence, and it certainly doesn’t bring the victim back to life. You can say eye-for-an-eye brings some measure of “justice” to the victim, but that balance sheet doesn’t work, since the condemned person is friggin’ gone. They’re released from any further punishment. Hell-talk aside, they never have to think about their conduct or the victim one second more. The death penalty does nothing to benefit the victim; direct vengeance to somehow satiate those who miss the victim reeks more of movie plot than measure of “making thing rights” with anyone.

Indeed, if we’re there’s a serious suggestion about having a death penalty referendum, let’s go all the way. Here’s the language:

Nevada must kill, on a one for one basis, the most beloved family member(s) of anyone found guilty of killing another person(s) but the perpetrator lives in prison for life.  If this passes and is not found to be constitutional, then no death penalty of anyone can occur. If this does not pass, then there is no reason to have a death penalty and the death penalty must be repealed.

Think about it.  This measure would actually make all the dreams and promises of pro-death penalty advocates come to fruition. I mean, seriously, right now it’s all just tough talk and no results.

Eye-for-an-eye? Got you. Innocent victim for innocent victim. Justice means suffering of the offender to you? Well, if you want the killer to agonize to the fullest degree for the rest of his or her life like the victim did – boom. Deterrence? Heck, everyone and their literal brother will be working overtime to make sure no one gets killed again. Racism, prosecutorial misconduct? Look, everyone in the system is going to be on their best behavior when triggering a possible mandatory execution of an uninvolved party. And cost? They can run, but they can’t hide. We can make it a national game where we post the face and give a bounty (a fraction of the cost of housing a death row inmate or law enforcement salaries) to anyone who kills the target! Even better: make it a game show and sell advertising.

And as a bonus, if it turns out the accused person was actually innocent, they can be exonerated while they’re still alive!  Currently, all we can do is put an asterisk on a gravestone if we’re too late figuring it out.

Mr. Wolfson makes sense when he says this issue should be punted to the people. It truly seems to be the only “path.”  But let’s really see what’s on the peoples’ minds. You never know -- maybe the real problem with the death penalty is that state-sanctioned killing hasn’t truly lived up to its potential; maybe the path was always meant to lead us through the angry mob. Maybe if we are all at risk of execution, we won’t ever have to kill another person again. Or we’ll kill a lot of people. Either way, at least we won’t have to burden our legislators with doing the right thing, or calling out their own colleagues for failing to even let the matter be discussed. 

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.