I have spent a lot of time in this space in the last year criticizing various criminal justice system reform measures, from the merely philosophical to sloppy data presentations to counterproductive lawsuits aimed at spurring reforms to misplaced priorities to good ideas gone too far. But the fact that I’ve had something to criticize is actually a major point in the reformers’ favor, and will in the end lead to better policy..
Two years ago, the Legislature created a sentencing reform commission tasked with looking for ways to make our system more just. In the meantime, an outside research agency was employed to provide data to policy makers, and then made that data public. Recommendations for reform based on that work were made, which led to several criminal justice reform bills – including the omnibus reform bill AB236 – being introduced early in the legislative session.
Actual proposals naturally lead to more criticism from various stakeholders, and AB236 went too far on a number of reforms. This rightly led to protests from law enforcement agencies, and more importantly, particularly handsome and humble Nevada Independent columnists. The proposals were put through the crucible of robust public debate, and last week a substantially amended version of AB236 was introduced for further debate and revision. If what passes remains along the lines of the amended bill now being considered, it will represent a substantially positive overall change in our criminal justice system.
This is lawmaking the way it’s supposed to work. Whatever disagreements I may still have when the final bill is sent to the governor, its early introduction and years of groundwork underlying the policy changes will almost certainly lead to a more just Nevada.
So why does this successful formula seem to be used so rarely in Carson City?
Contrast criminal justice reform to education funding formula reform efforts, which is a complex area of law and policy with enormous and far-reaching consequences for nearly every Nevadan. It has been talked about for years. And yet, as of this writing and with less than one month left in the session, no bill has been introduced. A private meeting with select politicians and business leaders was held in Las Vegas to discuss the ideas that may or may not become language in a piece of legislation which doesn’t exist yet, but that was clearly meant to be on the down low.
Allocating education dollars can never be done with perfect “fairness” given the radically different types of school districts in our large state and their unique needs. And where the pot of money is fixed, giving more money to some schools will result in less to others, which will create a lot of hate and discontent, no matter how “fair” the end result may be.
Because there is no bill, everyone is either simply speculating about the changes to come, or must rely on conceptual information that may or may not be in an actual bill draft. Lack of information doesn’t prevent anger and frustration, it only exacerbates it, and erodes the good will necessary to hash out differences in good faith. The teacher’s unions are up in arms about it already (on teacher appreciation week, no less!) — and who can blame them? Springing major legislation on stakeholders in the last weeks of the session is hardly the way to inspire trust.
Major policy changes that are rushed or poorly developed will always stink. When education funding bills are poorly crafted, real families are hurt by it, no matter how good-hearted or well-intentioned bill sponsors may be.
It is legislative malpractice for there to be no written proposal with mere weeks left to go. Whatever the original language of the bill might be when it is first introduced, it will without a doubt be flawed. Without adequate time for public critique and debate – and there is not adequate time left in the session at this point – those flaws will not be corrected. The possibility that the cure will be worse than the disease grows every day.
The seeds sown by this lack of pre-session forethought are now being reaped, and not just with respect to education funding. The Legislature wants to spend $211 million we don’t have on a variety of bills working their way through their committees. The governor waited until now to have a legal brief produced about the number of votes needed to raise, er, I mean, not lower taxes as originally planned in previous authorizations, and now entirely foreseeable protracted legal challenges will cause chaos for the entire budget closing process. Teachers aren’t going to get the raises they were promised, and yet the Legislature is incomprehensibly moving to artificially inflate the cost of building new schools by millions of dollars.
It’s almost as if it’s all being made up as they go along.
When you plan ahead and work ahead, you get ahead. In large policy overhauls, success will only be achieved where proposals are both timely and public, with the specific language that is subject to early debate and scrutiny. Sponsors of legislation need to remember that not everyone who tells you what you want to hear about your bill is your friend, and not everyone who tells you what you don’t is your enemy.
Plans, as they say in the military, never survive contact with the enemy. But the military still spends a lot of time planning, because altering an existing plan to conform with new data is much better than procrastinating until the last minute and then having to pull something out of one’s… hat.
From a smart public policy standpoint, the lesson of 2019 is that 2021 needs to start right now.
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]