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What do you mean when you say “reform,” Mr. attorney general?

Orrin J. H. Johnson
Orrin J. H. Johnson
Opinion
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Scales of justice.

Last week, Attorney General Aaron Ford published a memo, meant for public consumption, to his prosecutors. The memo was to provide guidance to them in how they should go about exercising their legal discretion in a way that comports with the new boss’s philosophy, which is a smart thing to do.

I read the memo with interest, waiting for something…  I don’t know, different. Radical, perhaps? Or detailed, certainly. It was none of those things.

On the surface, this is a pleasant surprise. I rather want the day-to-day operations of my government to be boring and predictable. Crime and punishment isn’t something that should be particularly partisan or predictable.

But in this age of radical criminal justice reform efforts, some of which are long overdue and others of which are bat-guano crazy, the dullness – and more, the lack of specifics – of the memo are almost suspicious. Since the guidance to his folks was designed to be public, here are a few questions for Mr. Ford. None of them lend themselves to easy answers, to be sure, but the way he answers them might well spell the difference between success and failure of efforts to make our system more fair.

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Mr. Ford, as a guiding impetus of your reform efforts, you cite numbers from the Advisory Commission for the Administration of Justice (ACAJ), which relied on data from the Crime and Justice Institute. Those numbers were presented as to make it look like Nevada judges are simply locking people up without a second thought, and doing so with ever-increasing frequency. But this is false – when our overall population increases are factored in, it’s clear we’re sending fewer people to prison per capita without sacrificing public safety, due (no doubt) to more modest reform efforts which have been in place for more than a decade. How can we trust any reform effort based on faulty numbers, and can you please stop using them? If so, your own reform efforts will be more credible.

You exhort your prosecutors to recommend release for misdemeanor offenders without bail, to keep crime victims in the loop, and to recommend treatment programs where available and applicable. You describe some of this as a “broader approach,” particularly with respect to pre-trial confinement. But these approaches have been standard operating procedure for most prosecutors I’ve worked with over the years. In fact, I didn’t identify a single “new” approach to criminal prosecution in the entire document. While there are always some unethical or stubborn outliers, as there are in any profession, the considerations you outline are common sense things any ethical prosecutor already takes into consideration in the pursuit of justice. The question, then, is this: what specifically were the deputy attorneys general doing in your office before your election that you felt needed to be changed? How major are the changes we can expect?

In assessing what needs to change in your office’s criminal division, it cannot escape notice that you have absolutely no criminal prosecution experience. And the individual you tapped to oversee every prosecutor in the state is one of the most genuinely nice and good-hearted people I’ve ever met, but she also has absolutely no prosecution experience. If I were a rank-and-file career prosecutor, I might feel some frustration a) at the implication I wasn’t adequately “seeking justice” six months ago, and b) that I’m being told what to do by people who don’t – can’t, really – have an understanding of what I do day-to-day. From a leadership standpoint, how do you convince your people that they can trust you to credibly guide them to the place you want to go?

In announcing your guidance, you said regarding county prosecutors:

“I acknowledge the autonomy that district attorneys have throughout the state and it is not my intent to impress upon them some mandate from on high that you must do this. It is presented as an example of what you can do and you know, if they decide to adopt some of these internal policies and maybe they already have them. I’m not suggesting they don’t, but if they decide to adopt some, you know that’s welcome.”  

Elected county district attorneys are an independent (and generally conservative) bunch, and need no reminding of their autonomy. Most of them are seasoned, experienced criminal prosecutors in their own right, and several have defense experience as well. By saying, “I’m not telling you what to do, but…” they absolutely will feel that you are trying to assert some authority over them you don’t have — or that you might be willing to do so in the future. They also feel, no doubt, somewhat besieged as a group by legislative reform proposals they associate with you, making them even less inclined to accept your “guidance.” Would not a somewhat humbler approach be wiser in building long term consensus for lasting reform?

You want to encourage pre-trial releases without bail for most misdemeanor and non-violent offenses, which is a good thing. Most of the time it is already the norm. But in some places, like Seattle and San Francisco, this philosophical approach has been extended thoughtlessly, and has led to “catch and release” schemes resulting in skyrocketing crime rates, more dangerous living conditions for addicts and the mentally ill, and citizens who feel abandoned by their government. Will your prosecutors have the discretion to keep habitual offenders off the streets, even if on paper their crimes are “minor” or “non-violent”?

Legislative reform efforts are mostly contained in AB236, the omnibus criminal justice bill which proposes some incredibly ambitious changes to large portions of our criminal code. While there are a lot of very good proposed changes to our criminal code in that bill, some of them are potentially self-defeating for criminals fighting addiction.

For example, take the prohibition against revoking probation based on “technical violations” of parole, which includes repeated illicit drug use, any misdemeanor conviction (including domestic battery, DUI, thefts, etc.), blowing off drug testing or visits with probation officers. I don’t want judges to be too quick to revoke probations, but the reality is that behavior that is not addressed will not be deterred. Telling addicts in drug court that continuing use won’t get them kicked out of a program undercuts the entire efficacy of those programs. Otherwise, we’re just playing “catch and release” until the addict in question dies in a gutter with a needle in her arm, harming others in the community on her way to her own destruction.

In your memo, you say you wish to promote both effective treatment for addicts and judicial discretion, and you’re right to do so. Will you fight for those principles by pushing back against parts of AB236?

Other proposed changes in this and other bills seem to fly in the face of your promise to put victims first – for example, the requirements of the bail reform bill (AB325) will likely deny victims of their newly enacted constitutional right to be heard before bail is set. I personally am more sympathetic to serious bail reform efforts than to Marsy’s Law, but the latter is now constitutional imperative. If one is willing to “creatively” interpret constitutional mandates to reach a preferred policy outcome, how can we trust that person will protect other civil liberties enshrined in that document?

Speaking of civil liberties, the right to possess firearms is one of our most important liberties, enshrined in both the state and federal Constitutions. Will you protect that civil right with the same vigor as any other?

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I mean to be pointed in these questions, but not antagonistic. In Ford’s memo, I read the evolving considerations of a man who has no doubt learned a lot from his employees over the past few months. No doubt his views will continue to adjust as the responsibility he has to protect public safety is tested on a daily basis.

Criminal justice reform is a tough animal with no perfect solutions. It is a question of seeking precise balance between individual liberty and public safety, a balance that mere mortals will always fall short of achieving. But that doesn’t mean we shouldn’t make the attempt.

But contrary to the old adage, sometimes it does hurt to try, if your experiments are reckless or lead predictably to greater imbalance. And that means change should be approached with caution, slowly and incrementally. The philosophies and traditions underlying our criminal justice system are the result of (at least) eight centuries of trial and error, and ought not be abandoned or transformed without a great deal of care.  

Smart criminal defense attorneys should be just as skeptical of some of these changes as police and prosecutors are. While I have no real gripe with anything in Ford’s memo, and while some of the more radical reform efforts (such as making unlimited quantities of meth and heroin misdemeanors if there is no independent proof of intent to sell) will be a short-term boon to some of my current clients, there is danger for them as well. If citizens are (or even feel) less safe as a result of good reform ideas taken to bad extremes, the political pendulum will soon swing hard the other way, to the detriment of our clients specifically and our civil liberties in general. Consider that the “tough on crime” laws which proliferated in the ‘80s and ‘90s were a result of a sharply increasing crime rates, which politicians successfully blamed on “felon-friendly” courts and libertine culture of the ‘60s and ‘70s.  

As a liberal prosecutor, Aaron Ford is uniquely positioned to bridge the gap between law and order types and civil libertarians. If he does it well — with humility and a bent ear to those who are not his natural political allies, and with healthy skepticism toward those who are — he can take credit for truly making our justice system more, well, just. If not, he will make Nevada less safe, and criminal defendants worse off in the long term.

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 criminal defense attorney in Reno. Follow him on Twitter @orrinjohnson, or contact him at [email protected].

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