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Reviewing and reforming our criminal justice laws – How to do it right

Orrin J. H. Johnson
Orrin J. H. Johnson
Opinion
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Of all the criminal justice reform measures passed by the Legislature this session, the one that will have the most substantial and lasting impact is one that doesn’t actually change anything yet. The new law is SB 451, which creates a Nevada Sentencing Commission. The mission of this commission is to do a top down review of our criminal statutes, ensuring that we are living up to this standard: “Sentencing and corrections policies should embody fairness, consistency, proportionality, and opportunity.”  

SB 451 is fairly long, as bills go, and the bulk of it describes what the commission should be considering and balancing. It’s a thoughtful list, but can be boiled down to this: Sentences should fit the crime, and should be fairly applied across the state. Right now, that’s not always the case.

Having spent my 10 years as a practicing attorney as either a prosecutor* or a public defender, I can say from both perspectives that this is an idea a long time in coming. Done right, it will create a more just system for victims of crime as well as for criminal defendants. There will always be small minority of bad actors within the system – police, prosecutors, defense attorneys, and judges alike – that smart reforms can largely protect the public against.

But “done right” is the key. Done wrong, and it will exacerbate unfairness, cost more money, and put the public at greater danger in the name of thoughtless compassion.

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Following is an example from a few years ago that exemplifies the sort of thing the Commission might change. In Nevada, the crime of Burglary (NRS 205.060) is generally defined as entering a structure or vehicle with the intent to steal something out of whatever you entered, and carries a potential penalty of between one and 10 years in prison. This makes perfect sense if you’re breaking into a closed business in the middle of the night to clean the place out, or worse, climbing in through the window of a family’s home. But it also once allowed for a minor shoplifting case to be charged the same way – a person walking into a 7-11 to swipe a candy bar could be treated the same as a residential burglar intent on the jewelry in your bedroom.  

Prior to 2013, this was common. Even if the case was ultimately pled down to a misdemeanor, the felony arrest would still linger on criminal histories. And if you didn’t commit the crime you were accused of...? You didn’t dare fight it, as it would be risking a felony conviction and prison time. I once had an 18-year-old client who spent nearly a month in jail on a felony charge for stealing a single bottle of Corona from a grocery store, and the police report had acknowledged he’d been coerced into stealing it by another person.  

Almost every minor shoplifting case that ever came across my desk as a public defender was charged this way. But in 2013, NRS 205.060 was amended to (in most cases) exclude entering a store during its business hours to commit a petit larceny from the definition of “Burglary.” This was exactly the right thing to do – shoplifting is still punishable as a misdemeanor petit larceny, with punishments that fit the crime. Judges still have discretion to punish the offender based on his or her criminal history and the facts of the case – anywhere from a fine to six months in jail. Prosecutors can’t seek disproportionate sentences for a minor offense, though, or unreasonably dissuade a person from asserting his or her right to a trial if the person feels unjustly accused. Taxpayers aren’t wasting money on a prison cell that should be occupied by a more serious criminal. And habitual shoplifters can still be punished with a felony.

This is a success story the Nevada Sentencing Commission should emulate.  

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The biggest blind spot of the commission will be the same one that afflicts legislators.  

Whenever lawmakers consider a bill involving crime and punishment, they necessarily must do so in the abstract. But our brains don’t work that way, so every single person constructs an actual factual scenario in their heads and then decides on sentencing options with that fictional case in mind. The problem is that no two criminal cases (or two criminals) are exactly the same, even when they’ve (on paper, at least) committed the same crime.  

Even if the crimes are substantially similar, no two people will face exactly the same consequence – for example, a DUI will effectively end the career of a forklift operator, but might be merely inconvenient for a government bureaucrat or an assemblyman. A domestic battery conviction has outsized immigration consequences, even for people who have been legal green card holders for decades. It’s not that these aren’t serious crimes deserving of reasonable punishment, but permanent banishment from where one lives or the sudden loss of your livelihood are often not reasonable consequences under the circumstances. On the other hand, too many people who regularly victimize the public and have refused for whatever reason to take advantage of various addiction or other life-skills programs made available to them are allowed too many community-threatening “second” chances.

Attempting to fix this legislatively, though, too often takes away needed judicial or prosecutorial discretion. This discretion means that we can never achieve perfect fairness across the state, but the alternative is far worse. “Fixing” one judge’s or prosecutor’s bad decision in one case too often leads to good judges and prosecutors not being able to cut someone who deserves it a real break (or to push harder when community safety requires it), leading ironically to a greater number of injustices in the end.  

The Commission must, then, recognize that it cannot account for every factual variation seen in criminal cases, and must diligently preserve the ability of criminal justice professionals to consider each case on its own factual merits as it proceeds.

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There are plenty more places in the criminal code where similar improvements are warranted, and I look forward to humbly assisting the Commission with my own suggestions in this space in the months to come.  

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As my bio regularly notes, I currently work as a Deputy District Attorney for Carson City. The other attorneys with whom I work, including the elected DA himself, are thoughtful and conscientious professionals who take their obligation to maximize justice in each case very seriously. (I’m not above brown-nosing, but I wouldn’t work there if that wasn’t absolutely true.)  Even so, I feel obligated this week to acknowledge that these policy changes will affect me directly, and also to take extra care to make clear that my opinions on these matters are mine alone, and in no way reflect any sort of official pronouncement of policy or purpose from my office.  

Orrin Johnson has been writing and commenting on Nevada and national politics since 2007.  He started with an independent blog, First Principles, and was a regular columnist for the Reno Gazette-Journal from 2015-2016.  By day, he is a deputy district attorney for Carson City.  His opinions here are his own.  Follow him on Twitter @orrinjohnson, or contact him at [email protected].

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