Crowning the Nevada Supreme Court building in Las Vegas is a statue of Lady Justice. From the sidewalk, you can see her holding the Sword of Justice, pointing into the sky, as if calling the heavens to attention. More difficult to see, her other hand holds the Scales of Justice, balanced.
So much about Nevada’s constitutional system is about balance. Balancing our executive branch against the legislative branch against the judicial branch (against the executive branch, etc.). Balancing the Senate against the Assembly; the Supreme Court against the district courts against the justices of the peace. Balancing mining interests against . . . well, nothing’s perfect. But, perhaps most important, balancing individual rights against governmental power.
The Black Lives Matter movement has brought attention to the imbalance between executive power (i.e., law enforcement) and individual rights (e.g., people who don’t like being killed in the street). It has also brought attention to the legislative branch’s complicity in this imbalance (e.g., we need to do better than the special session’s SB2. This attention is more than overdue, and hopefully will continue into the regular session.
But we shouldn’t forget our third branch, the one tasked with judgment. That branch, Alexander Hamilton explained, is the “intermediate body between the people and the legislature.” As originally envisioned, the courts are an important check on the other branches. A check necessary to maintain balance.
Unfortunately, the legislative and executive branches have put a thumb on the scales. Criminal statutes have proliferated, providing unchecked power to prosecutors and police. With so many crimes available, police have the discretion to stop almost anyone; prosecutors, in turn, then have the discretion to charge any number of offenses, stacking sentences to decades or life in prison. For a person facing a behemoth sentence, a plea agreement becomes irresistible, innocence notwithstanding. This is a not-small problem for the fairness and accountability of our criminal justice system. A plea agreement sidesteps a trial, effectively sidestepping accountability for law enforcement or the prosecution.
Until these bigger problems are addressed by the legislative and executive branches, judges are our last best hope for fairness. What makes for fair is not a mystery: social scientists have confirmed what our common sense tells us. We perceive a system as fair when: (1) we feel we have a voice in the process and can express our concerns about it; (2) the decision-making is neutral and based on facts; (3) the interpersonal treatment reflects politeness and respectfulness; and (4) we believe the authorities are benevolent.
There is a group of lawyers who spend their careers doing everything they can to ensure this kind of fairness for folks navigating the court system: criminal defense lawyers.
Stop laughing. Hear me out. I get it. I know “Law & Order” and “The Wire” tell us that defense lawyers are the worst kind of immoral scum. (Also: “Better Call Saul”).
But let me tell you about the defense lawyers I know. They look for a person’s humanity, where others only want to see what’s heinous. They know that we can’t incarcerate our way out of social problems. That mental illness or drug addiction or homelessness are not crimes. That a missing bike light should not be a death sentence. That these are sophisticated problems, requiring sophisticated solutions.
They know that fairness requires recognizing everyone’s—even our accused’s—dignity. That, as Bryan Stevenson puts it, “the opposite of poverty is not wealth . . . . the opposite of poverty is justice.” That a fair system is one that holds all parties accountable, including law enforcement and the prosecution, and gives a voice to the voiceless.
I can think of no experience more important to being a judge than having spent time as a criminal defense lawyer.
So, in November, when we vote for judicial candidates, think less about Lady Justice’s sword and more about her scales. But, then, maybe even more instructive is the seal of the Nevada Supreme Court, depicting the Goddess of Liberty. She holds a capped pole, a symbol for freeing slaves (itself a symbol for our role in the Civil War). In her other hand is a shield, inscribed with the Court’s motto, “Fiat Justitia,” or “Let Justice Be Done.” After all, when the court does justice, it’s a shield protecting liberty.
Randolph M. Fiedler is a public defender representing death row inmates in state and federal post-conviction proceedings. He is the past president of Nevada Attorneys for Criminal Justice. The views expressed here are solely his.