Human frailty and domestic violence

There have been a lot of intriguing words written about a new, transformative Nevada Supreme Court decision cementing a right to a jury trial for people accused of minor domestic violence. There should be a lot more. This is a big change for Nevada. At a quick glance, it appears fewer prosecutors will sustain convictions and all the justice court systems throughout Nevada may come to a screeching halt from the new processes and demands because no one was prepared for this to happen. What’s not being reported is that behind the courthouse scenes, most stakeholders are freaking out about the mechanics of finding jurors, picking jurors, having room to seat jurors — and where the funding is going to come from.

On the other hand, I think this is a gift of time to assess just how we got to have so many domestic violence criminal complaints in the system. To ask the question: Why, after years of increasing penalties and more arrests, is there still far too much domestic violence and murder of intimate partners in Nevada?

However, it looks like folks in power don’t want to ask that question and are clinging to the old ways to protect what is perceived to be the only approach to the devastation associated with violence between intimates. As such, the only question really floating around right now concerns how can we work the system to make sure the status quo of misdemeanor convictions and punishments stays the same. In fact, the City of Las Vegas has already floated the idea of passing its own (likely unconstitutional) law that manipulates the definition of domestic violence and state penalties to avoid the new high court decision. All that, and a heaping helping of “how dare the Nevada Supreme Court do this?”

Given some of the rhetoric from laudable non-profits like Safe Nest (providing advocacy and more for victims of abuse) and strong language from our attorney general, Aaron Ford, one might think the state’s high court on a whim decided to officially shame all victims while throwing a glorious funfest with free sleeveless T-shirts and meth for citizens accused of misdemeanors. This couldn’t be further from the truth.

Before we dig into existing law, it must be noted that most of the vitriol directed at the Nevada Supreme Court conveniently overlooks that people are absolutely innocent until proven guilty beyond a reasonable doubt. It also seems that people bemoaning this new ruling simply don’t appreciate the opportunity our high court has given the citizens to fix a broken system. 

See, our state has fallen into a very simplistic and overreaching rut when it comes to the charge of “domestic violence,” in the form of law after law getting us closer to zero tolerance for any physicality between people in a relationship under any circumstances while at the same time tweaking up (and up) the penalties (and cost) for being convicted of domestic violence. 

It’s easy to understand how we got here. Oftentimes, when a clearly identifiable societal ill comes to the Legislature, the unsophisticated default is “let’s get tougher penalties on the books”; an idea that we can arrest our way to a serene place where lovers only love and no one will ever be hurt again. And Nevada has a big societal ill in this arena. For more than a decade, Nevada has consistently logged some of the highest rates in the country of women killed by men – and of that group, the victim was almost always at some point in a domestic relationship with her killer. Of course, domestic violence laws don’t merely cover relationships between men and women. In fact, a lot of intimate connections qualify.

 The Nevada Revised Statutes broadly define relationships deemed “domestic” and require arrests of at least one or sometimes both individuals. And while the law provides that if the police determine there are “mitigating” factors an arrest doesn’t have to occur, rarely if ever are mitigating factors found. In fact, the non-arrested party saying “Hey, I don’t want to press charges,” (by law) cannot be considered. I have had more than one case where the arrested person was an acting-out Alzheimer’s patient (or someone intellectually disabled) whose caretaker called the police to help calm things down. The intention of the caretaker wife was never to put an 85-year old in full-throttled dementia into jail, but that’s what happened. It created far more problems than any sort of protection the law was ostensibly designed to solve.

That’s where it kind of goes sideways, sometimes. The law is the law. Indeed, prosecutors aren’t even allowed to dismiss the cases, absent extreme circumstances. The law of “domestic violence” means “any willful and unlawful use of force or violence upon the person of another” no matter how slight. And by slight, there’s not an attorney who practices in this area who hasn’t seen a case involving an allegation of a light push, a single slap, arm grab or accidental injury under all sorts of give-and-take scenarios as the cause for a misdemeanor charge. And to that end, the named victim (more times than not) decries the prosecution to the very end, but to no avail. Advocates would say that they know the statistics, so they know better than the autonomous human who sometimes pleads for the government to just let it go. Few are willing to engage in dialogue in the zone of tension between human frailty, self-determination, and stats.

Anyone convicted of misdemeanor domestic violence is required to attend six-months to a years’ worth of expensive classes (mostly by private firms with opaque websites that don’t speak of profits or even qualifications), pay a hefty fine to the court and jump through a number of hoops as well as serve the aforementioned jail time (up to six months) and the well-known loss of gun ownership rights – and well, all the other stuff that elevated this to a “serious” crime requiring proof beyond a reasonable doubt in front of a jury of peers, now.

Understandably, those who advocate for the abused or those who have been affected by real violence have little patience for those (like me) who point out that the Nevada approach to solving domestic violence woes (and theoretically, escalation) is highly flawed and catches far more people (and sometimes the wrong person) than necessary; that it is also far too expensive, arduous and often-Kafkaesque in the net of court proceedings and court-ordered restrictions and “classes” (which apart from being for-profit are not easily vetted for effectiveness nor tracked for outcomes). Victim advocates usually advance as common wisdom that major violence starts with minor violence and better to interact with as many people as you can as early as you can and allow the government to intervene. That may very well be true, but it doesn’t justify a non-sustainable, impersonal approach.

Even the most ardent victim advocate will have to admit the criminal justice system is not a sanctuary or healing retreat, the police are not trained counselors and the costs (both financial and time) of domestic violence cases often adds to the struggles within relationships instead of “fixing” them. The causes of violence amongst intimates is usually not a deliberative crime (“today I plan to commit domestic violence”), but typically a dysfunctional response to a host of emotional triggers. These triggers are typically heightened by financial difficulties, mental illness, addictions and scores of other societal ills that disproportionately affect the poor. (Rich people rarely have a neighbor call the cops on a loud argument; they also have access to lots of private counseling and tend to convince the police that everything is alright with the authority of a person with a Lambo in the driveway). Some relationships have a degree of physicality that both parties consent to, and while the outer boundaries of that have objective limits, a one-size, zero-tolerance model is an ill fit for many situations.

As our state has been embracing an increasingly draconian system of punishments and bureaucratic involvement in the already complex lives of people, there was invariably going to be a tipping point. The Nevada Supreme Court did what most scholars knew was coming for a long time – they said the penalties are severe enough to require a jury of peers (versus an elected judge) to make the call as to whether punishable criminal behavior occurred.

And despite the hyperbole that giving a person a full due process day in court (over an often one-sided and abbreviated bench trial) is going to have a significant impact on how many lives (or relationships) are saved, it is not. Because as it stands, the laws in place virtually guarantee that as a society where minor physicality comes into play – we are creating classes of abusers and victims with no nuance and no measure for much beyond punishment. 

It should be noted that in cases where serious violence occurs, or where there is any degree of hands on a throat, or in the case of three-time repeat offenders, or where the named victim is pregnant, jury trials are already warranted since they are more than misdemeanors. The same is true for obtaining restraining orders, which just got less difficult by way of new laws from the Legislature.

The new Nevada Supreme Court opinion doesn’t change a thing in these situations.

What the opinion does do is two things that have the potential of changing everything we know, independently, about court systems and domestic violence. 

First, it will invariably result in fewer people being convicted on marginal cases. Judges don’t get elected on a platform of holding every verdict to the high standard of reasonable doubt. And while I like to think that every judge purges lingering worry of being deemed too light on crime – there is a common feeling around the courthouse that nowadays most judges err on the side of conviction because well, “domestic violence.” No one wants to be on the wrong side of it. It’s just a lot easier to say “guilty” than “not guilty” for many sitting judges today.

Second, it could shut down the system for a while — until the system figures out how to adjust. Judges are already asking people if they want a jury trial when the question shouldn’t even be asked – people are entitled to one as a default under our Constitution now. I’ve also heard there’s an idea of empaneling one set of jurors to hear all the cases which is equally odd given that each defendant has a right to delve deeply into the biases and possible conflicts of any potential juror. Having one set of jurors may be convenient, but it tends to disrupt an important protective process. 

Some prosecutors are thinking about going to the Legislature and asking them to remove the suspension of gun ownership rights. And about that money, well, jury trials are more expensive than regular court proceedings, and there’s been some talk of taking the money from the very diversion programs that (arguably) help people not get into domestic violence situations by treating some of the underlying pathological factors.

Certainly, it will all work itself out as any expanded guarantee of rights does, but in the meantime, many people for the first time in a long time are taking stock of just how many misdemeanor domestic violence cases are in our systems – and the number is astounding. This pause in what to do with domestic violence cases should be a call to consider what can we do differently than lean so heavily on zero-tolerance law enforcement, harsher criminal laws, and a dysfunctional court system to address the basic issue of how can we stop people from hurting and/or killing intimates and family members. Whether that means bolstering NGOs to educate and empower individuals in these relationships, pouring tons and tons more money into the sorely needed mental health care and addiction treatment in our communities, strengthening safe facilities and programs for people to get away from a serious abuser, or simply taking the time to create dedicated, trained law enforcement teams with the goal of diffusing the potential violence instead of taking broken people and forcing them into a broken system… maybe we can take this moment to find a meaningful new approach.

In light of having hundreds, if not thousands, of very small domestic violence trials in the public eye to the potential shutdown of other parts of our justice court system, perhaps we’ll finally see the folly of depending on government prosecutions and incarceration to make humans safer and better. And not just in domestic violence cases, but all cases.

Instead, we need a true criminal justice reform conversation.

Dayvid Figler is a private 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.