The Indy Outlook: Brother Can You Spare Me a Dime?

The Legislature is currently considering three bills to increase the minimum wage. AB175 proposes to gradually raise the state minimum to $15 per hour, SB106 proposes to raise it to $12, and SJR6 proposes to amend the constitution to raise it to $12, in case it cannot be done by legislation alone.

Since it was first implemented in the Great Depression, the federal minimum wage has been increased more than a dozen times. These increases are necessary because the minimum wage does not keep up with inflation, and even low inflation rates add up over time. The federal government automatically indexes many things to inflation, such as tax brackets and Social Security benefits, but the real value of the minimum wage falls every year that Congress fails to act.

In 1950, the federal minimum wage was 75 cents per hour, about $7.25 in today’s dollars, the same as it is today, almost 70 years later. By 1968 the real minimum wage had been increased to about $10.90 in today’s dollars, while the unemployment rate stood at 3.4 percent. Inflation brought the real minimum wage back down to about $6.40 by 1989. The wage was increased again, but by 2006 it was back down to about $6.15.

Because of Congressional inaction, Nevadans voted to amend the state constitution in 2004 and 2006 to raise the then-low federal minimum wage by a dollar for employers who failed to provide health insurance. We also indexed the state minimum wage to inflation, and allowed a lower training wage for workers under 18.

If the state decides to bring the minimum wage back up again, the increase will be gradual. By the time the wage increase is fully implemented, a $15 wage will likely only be worth $12.50 in today’s dollars, a 50 percent increase. A $12 wage will only be worth $10.35, a 25 percent increase, but still less than the minimum wage was worth back in 1968.

The increase in the minimum wage is an effort to address income inequality, currently at the highest level in the U.S. since the 1920s. Working people near one end of the income ladder are struggling more while many CEOs at the other end of that ladder bring home a lot more. In 1965, the average CEO’s pay was 20 times the average worker’s pay. By 2013, the average CEO’s total compensation was almost 300 times the average worker’s pay.

Worker productivity and pay used to be linked. Between 1950 and 1980, real output per hour worked grew by 93 percent and real worker compensation grew almost as fast. In the three decades after 1980, however, worker productivity grew by 85 percent but worker pay per hour grew by less than a third of that. There were many reasons for this pay slowdown, including the decline of unions, less competitive labor markets, and technologies that replaced higher-paid workers with machines. But even that slowdown in compensation overstates income growth for most working people, since median wages grew more slowly than average wages.

Nevada used to be one of the less unequal states. But between 1979 and 2007, real incomes for the top 1 percent of Nevadans more than doubled, while average income for the remaining 99 percent fell by almost 12 percent. And today? Nevada’s real median household income is still 7 percent below where it was thirty years ago, putting us in 51st place (including D.C.) in income growth overall.

Is the U.S. minimum wage low relative to the rest of the world? Average wages differ from country to country and exchange rates can vary dramatically from year to year, so meaningful comparisons are tough. However, the OECD (Organisation for Economic Co-Operation and Development) publishes data that compares the minimum wage in each country to the median wage, and by that measure, the U.S. currently has the lowest minimum wage of any developed market economy in the world.

What are the possible effects of increasing the minimum wage? Any survivor of an economics class could tell you that if you increase the price in a competitive market, then the quantity-demanded will go down, all other things being equal. Firms will tend to hire fewer minimum-wage workers.

But how many fewer? Economics students also learn about elasticity, and estimates of the elasticity of labor demand for low-income workers tend to be under 0.20, meaning a 25 percent real increase in the minimum wage should lead to, at most, about 5 percent fewer minimum-wage jobs, and we should expect more than 95 percent of minimum-wage workers to be significantly better off. And not only minimum wage workers are affected. Wages for others workers close to the minimum are also pushed up.

The vast majority who get a pay increase are less likely to need food stamps or other government support to live, as a 25 percent increase in wages will help pull them out of poverty, thus reducing tax payer monies needed for social services. Minimum-wage workers tend to spend all of their disposable income.  This can be helpful during a recession because it provides demand for the goods and services that other low-wage workers produce. Meanwhile, the employers of unskilled labor may see a decrease in their profits, and some of their increased labor costs will be passed on to consumers. In the long run, some of those employers may move towards automating certain jobs, just as they have done in much higher-paid industries.

Wages are not the only labor cost paid by employers, of course. Employers in Nevada have to pay for Social Security, Medicare, unemployment insurance, and the modified business tax. Payroll taxes are proportional, however, so they don’t change the rate of the wage increase. Perhaps more important factors are the cost of managing workers, worker turnover, and the cost of the mistakes they make. One of the reasons elasticity estimates are so low is that better-paid workers tend to be better-motivated, and tend to lower those other costs.

The city of Seattle, Washington recently implemented a minimum wage of $15 per hour. Some pundits have argued that this had a significant impact on employment, but the data is not as clear as they pretend. Employment growth was actually faster in Seattle in the two years after the wage increase was passed than in the two years prior. Perhaps Seattle’s employment might have grown even a little faster without the increase, but it is hard to say that the effect was large. Still, Nevada is not Seattle, and we don’t know how $15 per hour would affect employment here.

What other policies might reduce the employment loss from a minimum wage hike? The federal minimum wage should be indexed, to make it less volatile. We might consider expanding the Earned Income Tax Credit, so that people who work at minimum wage could better support themselves or a family member without being in poverty. We could expand the availability of community college education, particularly in the trades, so that low-wage workers could improve their skills and become more valuable to their employers. We could consider changing our tax policies so that we stop favoring investment over labor, particularly investment in technologies that replace labor.

Back in 1963 President Kennedy opined in a speech that “a rising tide lifts all boats” and indeed that may have been true in the economy we had back then. But as fellow economist Gene Sperling once noted, in the absence of appropriate policies, “the rising tide will lift some boats, but others will run aground.” If we want to reduce the number of boats running aground without drowning anybody, past experience and current data both give us reasonable confidence that a gradual increase to $12 will have minimal negative consequences on those who need it most.

This op-ed is one of two on the Nevada economy published on Monday, March 13, 2017. The columns are Part Two of a series we’re calling THE INDY OUTLOOK and that will be written by Nevada economists.

Elliott Parker, Ph.D, the author of this op-ed, is a Professor of Economics in the College of Business at UNR .

Feature photo “Dime” by Paul Albertella is licensed under CC BY 2.0

 

Criminal Justice Reform: Reframing the Debate

Back in my public defender days, we sometimes had to come down to Carson City for parole revocation hearings. The hearings were held at Northern Nevada Correctional Center in a room connected to the visitation room, where we’d get a chance to briefly meet with the inmates ahead of time. Some of them were recent clients, but more often, we’d have very little information on the parolees or their original cases.

The parolees were often regular offenders with significant criminal history. They’d usually been given plenty of chances to clean up their acts, and almost all of them had failed multiple substance abuse rehabilitation efforts (at taxpayer expense).  The parole board could reinstate their parole or revoke them to serve their sentence, but they could also take away “good time” credits which would lengthen the time they had to physically spend behind bars.

We had a rotation in the office – no one really liked this particular task. It was a big chunk out of our work day, and we were all busy. The visitation room is a terribly depressing place – full of worn toys and games and Disney character murals next to the signs posted about how long your hugs and kisses could be. An unluckily timed lockdown alarm could have you standing between locked gates for a long time wondering if someone had forgotten about you.

Worse, no matter what the outcome, it all felt rather hopeless.  Even if they’d had a job when they were arrested for their violation, it probably wasn’t going to be waiting for them even if they were reinstated. Reinstated or revoked, one way or another they’d soon be back out on the streets with no connections, no job prospects, no money, no skills, and usually a monkey still seated firmly on their back.

Sisyphus would have understood.

But while I felt for my clients and wanted to help them, empathy has limits. In almost every case, they’d done great harm to a lot of different people, and deserved to be punished. Multiple efforts to treat their addictions had failed. And for a myriad of reasons, they were as likely as not to reoffend once released. The parole board gave a fair hearing to these folks, and would look for ways to provide additional services if they could, but sometimes they had little choice but to keep these folks locked up until their sentences expired.

None of that changed, however, the pragmatic problem of reintegrating a former prisoner, a problem everyone involved wanted to solve. There is no one, good answer.

I think about those hearings and the people I represented whenever lawmakers talk about criminal justice issues. Most of the time, we see those debates coming from two camps – either the “tough on crime” folks, or the “reformers” who want to pretend that people just happened to be in prison by mistake.

I tend to be more sympathetic with the tough-on-crime folks.  But that crowd rarely thinks past a sentencing hearing, or considers the reality that most criminal cases resolve with plea bargains. They too often rely on a cartoonish stereotype of convicted criminals, making them out to be forever irredeemable monsters who deserve neither society’s forgiveness nor our compassion. They incorrectly see prison as a place where people can be expected to leave “scared straight.” They almost never consider what happens five, ten, or twenty years down the line when they are released back into society. And let’s face it – much of their rhetoric is designed to pander to certain political constituencies.

For the “reformers,” the criminal is all they want to think about. They too often rely on a cartoonish stereotype of convicted criminals, making them out to be passive victims of circumstance endlessly entitled to society’s forgiveness and resources. Victims of the original crime are ignored, along with the very real probabilities of recidivism. They wrongly think criminals want – or benefit from – their pity. And let’s face it – much of their rhetoric is designed to pander to certain political constituencies.

Both of these factions rely on emotional appeals. And if a legislator or lobbyist is making an emotional appeal, take to the bank that they haven’t carefully considered the real-world policy impact of their ideas.

Instead, lawmakers should focus on how society as a whole benefits from their reforms. Take allowing felons to vote, for example. I don’t give a rip that an ex-felon who stole money intended for needy people is “disheartened” that she didn’t get to vote for President. But now that she’s out, I do care if she takes some responsibility for and ownership of her community, not for her sake, but because that means she’s less likely to commit another crime. Maybe voting is part of that.  On the other hand, I also care that she seems to have extremely poor judgment and an unhealthy sense of entitlement to other people’s money – not the type of voter who enriches society. I’m not sure what the right answer is, but I do know we can’t find that answer without framing the question properly.

That same framing is important when we talk about the length of sentences, the amount of credits against a sentence we allow inmates to earn through education, behavior, and addiction treatment, where to house them, or what resources to provide them upon release.

What individual criminals “deserve” is a question best answered in a courtroom.   In the capital, reform of the criminal justice system should instead focus on how to minimize society’s comprehensive, long-term costs while maximizing society’s benefits as a whole.

Orrin Johnson was a political columnist for the Reno Gazette-Journal in 2015 and 2016. He began blogging in 2005 for his law school’s Federalist Society chapter and in 2007 started his own blog, First Principles. He can be reached at orrin@orrinjohnson.com. Follow him on Twitter @orrinjohnson.

“Prison” by emilienchayer95 is licensed under CC BY-NC-SA 3.0

Metro comes through once more for federal officers in Bundy ranch standoff

Metro’s finest again provided timely backup for embattled Bureau of Land Management officers.
This time they weren’t outside Bunkerville defending a desert wash packed with rowdy protesters and impounded cattle. They were in U.S. District Judge Gloria Navarro’s courtroom testifying about the tense atmosphere and imminent danger present during an April 12, 2014 standoff between supporters of Bunkerville rancher Cliven Bundy and federal law enforcement trying to protect a BLM roundup.
Although no shots were fired that day, federal officers previously testified that alarming investigative intelligence, combined with the guns present in the agitated crowd and para-military dress of some of the protesters, made them afraid for their safety. Six defendants the government describes as Bundy’s gunmen are on trial accused of  threatening and intimidating BLM and U.S. Parks Service law enforcement officers.
In recent weeks, on cross examination,the defense has managed to portray the federal cops as inexperienced wannabes who lacked judgment and overreacted under stress. After the decision was made to discontinue the roundup, some of BLM rangers and Park police initially refused orders to put away their weapons, stand down and pack up. Some of their responses under oath made them appear more fearful than professional.
But the defense this past week had little success with Metro Sgt. Tom Jenkins and none at all with Sheriff Joseph Lombardo.
Jenkins brought more than two decades of law enforcement experience into court. He’s worked many protests, a few of which have turned violent. Attorneys could doubt his memory of the day’s events, but there was no questioning his resume.
Jenkins’ day on April 12 began as a member of an escort unit whose duty was to provide security for Sheriff Doug Gillespie. The sergeant wound up supervising the riot skirmish line police threw out in an effort to keep the protest from degrading into violence.
He noted the weapons present in the crowd, but his concern really grew when they begin being waved around and pointed in the direction of law enforcement. If you want to get a cop’s attention, just wave a gun at him.
“From the time we got there until the time we left,” Jenkins replied when asked how often protesters flashed their handguns and rifles Metro’s way.
And although lengthy recorded exhibits didn’t always concur with the sergeant’s memory of the subject, he was unflappable on the stand under incisive cross examination. When asked to elaborate on those who were doing the pointing, Jenkins reduced his description to “White males, pointing weapons at the convoy.”
And he appeared to set the defense team on its heels when he allowed that not only were his officers concerned for their safety, “They were scared. They were crying.”
He also said the officers wanted to retrieve their semi-automatic rifles from nearby police vehicles and don their flak vests, but were instructed not to by Assistant Sheriff Tom Roberts in an effort to keep from escalating tensions as the crowd grew and got louder. Testimony notwithstanding, video presented during the trial shows most of the protesters were unarmed.
But of course those weren’t the people police were watching.
When Lombardo’s took the stand Thursday, he reminded those who have followed his career that the public needn’t worry about his leadership skills. An assistant sheriff at the time of the standoff, Lombardo accompanied Sheriff Doug Gillespie to Bundy’s makeshift stage outside his ranch in an attempt to cool the heated rhetoric and avoid bloodshed. He stood patiently during Bundy’s windy grandstanding and impossible demands — disarm all federal law enforcement and bulldoze the entrance booths at the region’s federal conservation and recreation areas — and then returned to Las Vegas believing the botched cattle roundup was reaching a peaceful resolution.
For the first time jurors saw video of the elder Bundy holding forth with armed, uniformed members of the Arizona State Militia, who call themselves the “Praetorian Guard,” standing guard. Dozens of his hundreds of followers were armed with handguns and rifles.
When Bundy instructed his followers to go get his cattle, Lombardo’s day grew complicated and dangerous. He attempted to negotiate with one of Bundy’s sons, Dave Bundy, in a plea for patience and enough time to allow the BLM to make a safe exit.
It was Lombardo, jurors learned, who essentially put his career on the line to overrule BLM Supervisory Special Agent Dan Love and press for the release of the impounded cattle during the height of the armed standoff’s tensions.
“He advised me they were federal cattle and it was his decision,” Lombardo said.
Fortunately, Lombardo prevailed.
The sheriff estimated it would have taken 500 officers to fully secure the area, and he had just 50. Concerned that even an accidental discharge of a firearm would set off a shootout, Lombardo and his troops worked to de-escalate the scene and back federal law enforcement away from a gate that had become the last point of separation between increasingly agitated protesters and the officials sent to round up and remove Bundy’s trespassing cattle from federal public lands.
A cop since 1988, Lombardo made it clear he feared for the safety of the officers and protesters in the highly charged atmosphere. They don’t call in the SWAT team for traffic tickets.
Led in the courtroom by Assistant U.S. Attorney Steven Myhre, the prosecution appears to be finishing the long process of entering most of the voluminous photographic, video and audio into the record. The foundation of its case appears set.
The testimony of Jenkins and Lombardo was bound to hit home with jurors.

Bring guns to a peaceful protest, and you’re bound to get everyone’s attention.

John L. Smith is a longtime Las Vegas journalist and author. Contact him at jlnevadasmith@gmail.com. On Twitter: @jlnevadasmith.

Odds Favor Heller, Laxalt in 2018

First things first: Sen. Dean Heller is likely to be re-elected, and Attorney General Adam Laxalt is probably going to be the next governor.

Yes, it’s March 2017, so perhaps you should discount what anyone — candidates, pundits — says until filing closes in a year. But the GOP pair, with a ticket underpinned by state Senate Minority Leader Michael Roberson for lieutenant governor and Laxalt deputy Wes Duncan for attorney general, is formidable.

The Democrats have a large statewide registration advantage – 90,000 or so. But as of right now they have only Possible Candidates and no Real Candidates.

Sure, Clark County Commissioner Steve Sisolak could win for governor. So, perhaps, could entrepreneur and possible self-funder Steve Cloobeck. And maybe ex-Treasurer Kate Marshall or Caesars executive Jan Jones could defeat Heller if either were to run.

But if this were before the flop in Hold ‘Em, I like the GOP’s hand much better than the Democrats’. Starting with a Heller and a Laxalt in the pocket is better than the voter registration and Trump cards the Democrats are holding.

In poker parlance, the Democrats don’t have many outs; in political argot, they need someone to get in.

That’s one of the reasons I found the poll numbers released by Democratic-aligned groups last week so fascinating. (I am long over complaints about polls by partisan groups not being credible. If the internals look good, that’s what’s important.)

Although I believe the numbers are accurate – the pollster is legit – they are almost a cry for help. A song comes to mind – somebody, not just anybody….

As I wrote Friday, the numbers are ominous for Heller, the second consecutive public poll to show him underwater and even under President Trump. And Laxalt, while his conservative bona fides have been marvelously crafted to scare Heller and Lt. Gov. Mark Hutchison out of the governor’s race, is still not a widely known quantity.

Heller is weak, and Laxalt could be vulnerable to the right candidate. That’s what the poll says.

Digging deeper into the numbers – I obtained the crosstabs – there’s more provocative information:

—-Although Trump is holding his base very well in Nevada – 86 percent of Republicans say he is doing an “excellent” or “good” job, only 58 percent of his own party say Heller is doing so. Heller’s numbers among non-major party voters are a real warning beacon: Only 25 percent say he is doing an “excellent” or “good” job. Remember, registered voters who decline to be Democrats or Republicans represent about a quarter of the Nevada electorate. These findings confirm my suspicions that Heller’s dancing on Trump support during the campaign hurt him with the base, and Democrats and indies either find him to be a windsock or, ironically, because of his 100 percent support of the president so far, a rubber stamp for him.

—-The regional breakdowns also are ominous for the senior senator: The excellent/good numbers in Clark (32 percent), Washoe (33 percent) and the rurals (41 percent) are abysmal. If you are a Republican and 45 percent of cow county voters think you are doing a “poor” or “just fair” job, I think it’s time to look for the panic button. Among Republicans, Dean Heller is no Adam Laxalt.

—-Heller’s numbers among Hispanics are devastating: 22 percent view him as doing an excellent/good job and 63 percent say poor/just fair. (Caveat: The subsamples in any poll are small, so there is a much larger margin of error. But these are awful, with no help from any error margin.) No wonder I hear chatter about Rep. Ruben Kihuen leaving the House in his rookie year….

I could go on, but suffice to say the senator is not doing well across any demographic measured in the poll. So what of Laxalt? The survey on the attorney general was only a so-called thermometer test – that is, whether voters feel warmly or cooly toward him.

—-It’s interesting that 44 percent have no opinion of or do not know Laxalt, whose star has risen and whose party bonafides for a pol under 40 have not been this impressive since the guy he defeated, Ross Miller. Even 37 percent of Republicans had no opinion.

—-The 0-100 thermometer scale reveals Nevadans essentially divided so far on how they feel about the attorney general elected in 2014. Nineteen percent rated him above 50 degrees and 19 percent below. These numbers are mimicked in Clark (15-15), slightly worse in Washoe (22-31) and much better in the rurals (33-18). So Laxalt is not that well known, people in the urban areas (he lost both Clark and Washoe to Miller) are still meh about him and the rurals are solid but not overwhelming (at least not yet).

There are no wild cards in Hold ‘Em, but there are bad beats. And so many cards could come up to ruin the GOP’s starting hand – or bolster it.

If Trump’s numbers improve, it will be very difficult to defeat either Laxalt or Heller, all other things being equal. But if Trump is in the low 40s or worse a year from now, it’s possible a second- or third-tier candidate could win either of those races (maybe just anybody?), which is good for the Democrats because that’s what it looks as if they will have.

I also wonder if the time is finally ripe for someone to run down the middle – that is, an independent candidate to take advantage of the surge in nonpartisan registration and disgust with the major parties. Could an independent win a major race in Nevada?

There are other unknowns, too – voter registration trends, the post-Reid machine, Sheldon Adelson’s financial commitment, Treasurer Dan Schwartz’s possible gubernatorial candidacy. But the poll itself shows the Democrats are not quite dead yet, which is why it was released.

Yes, there are 600 days to go. So take all of this with as many grains of salt as Ben Carson thought there were inside the pyramids.

In Hold ‘Em terms, the flop has been dealt, but the dealer has yet to turn over the cards to determine if the Democrats’ lesser hand has been helped. Maybe the GOP’s hole cards aren’t as strong as they look before the new cards are flipped up, but I’d rather be in their seat than the Democrats’ right now.

“Four Of A Kind – Poker Hand” by Poker Photos is licensed under CC BY 2.0.

Disclosure: Stephen Cloobeck has donated to The Nevada Independent. You can see a full list of donors here.

 

 

Abolish the Death Penalty

by Randy Fiedler

Who gets the death penalty? The answer is not, as many suppose, every murderer. The Supreme Court decided in 1976 that murder, by itself, is not enough to warrant the death penalty. But also consider: Between 2000 and 2012 in Clark and Washoe Counties, there were 1,256 murder cases; only twenty-three received a death sentence. Sentencing all of those murderers to death would make Nevada, already one of the largest per capita death rows, the actual largest death row in the country.

If not every murderer gets the death penalty, how do we choose those who do? And, how do we ensure that we choose fairly? As the Nevada legislature weighs abolishing the death penalty, the answer matters. But answering these questions has proven extremely difficult.

In fact, when the Supreme Court abolished the death penalty in 1972, it was because there was no satisfactory answer to these questions. Justice Stewart described how the death penalty was cruel and unusual “in the same way that being struck by lightning is cruel and unusual.” The Supreme Court’s abolition began a forty-five year experiment in creating a fair and just death penalty system. The states immediately began passing new laws, with greater procedural protections intended to end the arbitrary application of the death penalty. Nevada was part of this wave, despite not having had an execution since 1961.

When the Supreme Court blessed the return of the death penalty, it was with the understanding that more procedure, and more protections, meant the end of randomness. As time passed, the Supreme Court crafted and adjusted additional protections. These protections were necessary compromises between two competing questions: the state’s question, “may we execute this person?” and the defendant’s rejoinder, “is this fair?” Historically, the answer has been: “the state may execute this person, but only if it is fair.” The result has been a gradual slowing of the process, adding more protections and more procedures.

But forty years of experimenting have not solved the problems of fairness. The two most important factors that determine whether someone will receive the death penalty are race and geography—factors unrelated to the crime. Nevada’s experience is no different. Despite constituting roughly eight percent of Nevada’s overall population, African-Americans make up roughly forty percent of its death row population. Clark County sends more people to death row than almost every other county in the country, ranking sixth.

The death penalty remains unreliable. Stories of innocent people wrongfully sentenced to death are easy to find. For example, Roberto Miranda’s public defender was bad enough that, after Miranda was exonerated from death row, Clark County awarded him a five-million-dollar settlement. Miranda’s case is only one example of a thirty-year saga: as reflected by a series of reports commissioned by the Nevada Supreme Court, the state suffered from a crisis of ineffective appointed attorneys, despite the fact that effective assistance of counsel is a constitutional right.

The death penalty experiment has also failed to produce a more effective death penalty. In the forty years since the Supreme Court brought back the death penalty, studies have failed to show that the death penalty actually deters crime any better than its alternative, life without the possibility of parole. This lack of evidence must be weighed against the cost of the death penalty, which takes resources away from other law enforcement activities. In 2014, the Nevada legislature performed an audit on the death penalty. Adding together the costs of capital trials, appeals, and incarceration, death penalty cases are much more costly than non-death penalty cases: on average, half a million dollars more costly. This added cost is necessitated by the additional procedural requirements for death penalty cases. This money, however, could be used for law enforcement activity that does have a known deterrent effect.

It is easy to imagine that we have a good answer to the question, “who gets the death penalty?” We imagine a death penalty, endowed with moral justice, swiftly and righteously inflicted on the worst of the worst, vindicating both the offense to society and the victims. We imagine a punishment that deters crime, that saves lives by conveying a message to others that our society will not tolerate the intolerable. And we imagine a punishment constructed with procedural safeguards that reliably distinguish between the guilty and the innocent, and that can distinguish those who “deserve” the death penalty and those who don’t. For forty years, the State of Nevada has tinkered with the machinery of death in an attempt to make this idea of the death penalty a reality.

For forty years, the State of Nevada has failed. What we have created instead of the death penalty of our imagination is a slow, bureaucratic machine, procedurally necessary, but irrevocably unfair. The death penalty is not, and never will be, what we want it to be. The death penalty was arbitrary forty-five years ago when the Supreme Court abolished it. It remains arbitrary today.

As the Nevada legislature considers whether to abolish the death penalty, it needs to consider the death penalty as it is, not as we wish it were. In practice, the death penalty is arbitrary, expensive, and not a deterrent. It serves no purpose other than to pose unanswerable question of its own fairness. Who gets the death penalty? It’s time for the answer to be, “no one.”

Randy Fiedler is a public defender who represents Nevada death row inmates in state and federal post-conviction proceedings. The views expressed herein are his own and not the views of his employer.

Featured image: An electric chair in Texas. Photo from Wikipedia licensed under Creative Commons.

A call for tolerance, gratitude, and optimism

by Assemblyman Keith Pickard

I have served as a member of the Nevada Assembly for nearly one month, representing the constituents of Assembly District 22. I feel honored and blessed to have the opportunity to serve them and all the citizens of Nevada.

Nevada is an emerging leader in the country in a number of ways, whether it is creating high paying and high quality jobs, or paving the way in innovative education that actually helps our students learn. I am proud to have played a role in helping to build on those reforms this legislative session.  I have to admit, however, I’ve also been disappointed by the defamatory remarks that too often mark the political discourse.

I write today to encourage my colleagues in Carson City, the media, and those that speak out on political issues, to use a new voice. A voice of true tolerance and appreciation for the great work done by those with whom we may disagree.

Recently, an editorial in the Las Vegas Review Journal spoke of intellectual intolerance in universities across the country. It noted that those that call for diversity in thought seem least likely of all to tolerate those of us who speak of traditional values and who don’t fit within their definition of what it means to be colorful.

We also see this venom in mainstream media. Even NPR, the former bastion of balanced, unbiased reporting, now uses harsh word choices and one-sided interviews to disparage and detract. Similar examples abound. These news outlets have become unabashed advocates of a particular side rather than reporters of facts. They focus on doubts, rather than the potential of people.

I recently read the writings of a hero of mine, Gordon B. Hinckley, from whom I borrow today. He recalled his father telling him, “Cynics do not contribute, skeptics do not create, doubters do not achieve.”

Pessimism is endemic today. We are daily fed a diet of character assassination, faultfinding, and gloom. Rather than focusing their attention on the good all around us, these purveyors of doom seek only to tear down, to disparage and complain. This sort of treatment does nothing at all to improve our state. As a wise man once said, “no misfortune is so bad that whining about it won’t make it worse.”

My goal today is to call everyone to common action. To not waste time over-analyzing the past or fretting about the future. To avoid ad hominem attacks that belittle and focus our attention and our words on the issues, with suggestions for improvement. And to those that are the focus of negative speech, to persevere with an attitude of gratitude.

I am not asking for silence or that anyone should refrain from calls for correction. Strength comes with change; wise is the one who changes after making a mistake. What I am asking for is optimism. Nearly everyone in the Legislature is here for the same reason: to strive for works of good for this great state.  There is reason for optimism all around us.

So, I ask everyone to join me in an effort to elevate the conversation. The journalist Jenkins Lloyd Jones wrote, “Most putts don’t drop. Most beef is tough. Most children grow up to be just people. Life is like an old-time rail journey – delays, sidetracks, smoke, dust, cinders and jolts, interspersed only occasionally by beautiful vistas and thrilling bursts of speed. The trick is to thank the Lord for letting you have the ride.”

To learn more about freshman Republican and successor of retired five-term Republican Assemblyman Lynn Stewart, read The Nevada Independent’s pre-session profile.

 

 

I will not apologize

by Dan Schwartz, Nevada State Treasurer
Dear Fellow Nevadans,
“Defiant,” “deceptive,” “rogue,” and “misleading”: these are all words that have been used to describe me in the last few weeks. Some say I have a hidden agenda, but my agenda is in the open for anyone and everyone to see.
I seek only to improve programs that benefit Nevada families and the youth of our state; and for that, I will not apologize.
Everything I do and have done as the Nevada State Treasurer, is for you – fellow Nevadans. I was voted into office to represent you, and I will support your interests, needs, and constitutional rights to the best of my ability now and in the future.
A bill was proposed by Assemblyman Anderson that the Nevada State Treasurer should no longer exist as an elected seat. Absurd, after my office has proven time and time again the value of elected leadership in working toward a collective goal. Over the past two years, we have tripled returns on over $3 billion in various government portfolios. We revamped College Savings, returned Unclaimed Property in 20 instead of 120 days, fought for ESAs, and questioned a project that could have cost taxpayers $175 million in defaulted bonds. The people of Nevada are perfectly capable of electing a State Treasurer rather than asking the Governor to appoint the position.
What is important to you? Your job? Your reputation? Or like me, is your family most important? The children of our state have been given short shrift for far too long. We’ve seen our education system failing Nevada students. We must do something to create a culture of learning in Nevada.
Education Savings Accounts are a step in the right direction. A parent should not only have the right to choose where their child goes to school, but be given the means to do so. Nevada parents, don’t you want the best for your children?
I came under fire for implementing College Kick Start incentives to improve the program’s success. If we didn’t take steps to expand the current program, we would’ve come back with the same stale results as the previous year. Instead, those incentives produced an enormous increase in college savings accounts claimed and opened.
For any of this programming to work effectively, I need smart, competent people in my corner. My office has operated under the assumption that it’s “all hands on deck” to implement and operate our legislatively mandated programming. The Public Information Officer position was created out of a need to function effectively. We weren’t required to bring the hiring to vote because the Governor’s Finance Office already approved spending the extra salary savings we accrued. This is an already established legislative process we followed because it was the simple, straightforward route.
I answer only to my fellow Nevadans. I do not seek to serve anyone else. I’m looking out for the best interest of Nevada families, particularly Nevada children. They are our future, so we must do all we can to create a system that allows children to thrive. These same children will someday be our future leaders, and I will not allow the future of Nevada to be held back by a tangled web of bureaucracy.
Featured image: Dan Schwartz at Gov. Sandoval’s State of the State address in January 2017. Photo by David Calvert.

Common sense says secret tape of attorney general must be made public

The state of shock that pervaded the Nevada political world after the disclosure of a secret recording of the attorney general has mostly subsided.

Even in the incestuous Nevada political arena, the revelation that the state’s chief gaming enforcer surreptitiously recorded the state’s top law enforcement officer because of suspicions of the latter’s fealty to Sheldon Adelson was a stunner. But now that head-shaking has yielded to a logical follow-up: What exactly is on that tape?

It’s a good question, and one that goes to the heart of the state’s public records law.

Forget the statute for a moment (I’ll get to it). Common sense says if one of the state’s top regulators, A.G. Burnett, surreptitiously records the attorney general, Adam Laxalt, because he suspects foul play – the FBI later found no crime had been committed – the public has a right to hear the tape.

Try arguing with that proposition.

The Nevada Independent has made a public records request of the control board. It was rejected. The state Democratic Party, operating under an imperative that may have more to do with Laxalt’s frontrunner status for governor than its concern for open government, has since made similar requests of the state and feds.

The gaming folks snubbed our records request saying the recording was not made in the course of regular board processes. But, the board went on to say, even if it were a public record by virtue of state law, it would be confidential because of attorney-client privilege.

That, of course, is easily remedied. Burnett and/or Laxalt could agree to waive confidentiality. You would think both would want to quell speculation about what was said. But, thus far, no.

The question is whether the open records law or attorney-client privilege takes higher precedence. Barry Smith, the head of the state press association, thinks it’s the former.

I think any plain reading of Nevada law would show the tape is a public record,” he told me last week. “The statute says everything is open unless it’s specifically made confidential, and I don’t see the tape covered by the exceptions cited by the Gaming Control Board.”

Smith explained that even though the board cited the law and said the tape “doesn’t fall under ‘organization, operation, policy or any other activity” of the agency,’” that can’t be right. Or as he put it, “How can that be?”

Laxalt wanted to talk to Burnett about whether the board should intervene in a lawsuit involving Adelson, his largest donor. Such a request clearly falls under the “policy” or at least “other activity” of the control board.

Indeed, the board has had a longstanding policy of NOT filing briefs to affect private civil disputes involving licensees. That’s common sense, too.

Any way you slice it, the tape is a public record. What about attorney-client privilege?

“I don’t think it applies here,” Smith said. “I’m not a lawyer, but I think if I tape-recorded a conversation with my attorney and then turned the tape over to police, I would have a hard time arguing that it was private.”

I’m not a lawyer, either. But it seems obvious: Burnett waived confidentiality when he turned the tape over to a third party, the FBI, and also when he talked to others about it before taking that step.

Think about the argument that is being made: The chairman can talk privately about a tape he made of the attorney general talking about a policy of manifest public interest, but all other Nevadans don’t have a right to know what was said?

I’m not sure whether that contention is more George Orwell or Lewis Carroll.

A few people have imputed partisan motives or have tried to discredit the messenger — or both. That is S.O.P. in any story involving a high-profile elected official, especially one preparing to run for the state’s highest executive office. And that’s why the Democrats, who know Laxalt is a formidable gubernatorial contender, are all over it.

Whatever your take on any of that, there are serious legal and transparency issues at stake here.

The attorney general serves as counsel to the control board, which made a legal determination that the tape should remain private. Did he have a hand in that decision?

I asked the board’s records custodian, Barbara Bolton, whether she sought outside legal advice because of Laxalt’s involvement, an obvious conflict of interest.

Her response: “No, the written response regarding the public records request was handled in the same manner as any other public records request the Board receives. In this particular instance, because the information sought, on its face, is confidential (pursuant to NRS 463.120 and/or NRS 49.095), which is consistent with Chairman Burnett’s prior public response, no outside legal advice was necessary.”

And no legal advice was sought on whether it was an ipso facto public record? No, Bolton said.

So this wall is made of stone.

Will a lawsuit be necessary to bring it down? Any enterprising attorneys want to volunteer to help a nonprofit push for full transparency in government? Any lawmakers want to actually do their oversight jobs and get to the bottom of things?

It’s not about Burnett or Laxalt, Democrats or Republicans, Sheldon Adelson or me.

It’s about making public what should be public and letting the chips fall where they may.

 

Bundy trial testimony on tense standoff after stand down order underlines lack of agency communication

His world narrowed and intensified through the scope of his high-powered rifle, Bureau of Land Management Special Agent Scott Swanson watched armed figures in tan and black caps on a distant highway bridge and said he felt an imminent threat.

 Anticipating fire, he sighted in the figure in the black cap.

“It appeared to me he was bringing his weapon up to his shoulder,” Swanson testified Thursday in U.S. District Court.

 Swanson squeezed the slack from the trigger. A hair more pressure and his weapon would have fired through a swirling wind toward an armed man standing near unarmed citizens with traffic slowly flowing past on the northbound lanes of Interstate 15.

 This is how close agents and protesters came to sparking a bloodbath on April 12, 2014 near Bunkerville during the tensest moments of the BLM’s attempted impoundment of rancher Cliven Bundy’s cattle.

 The man in the black cap, Swanson said, was making furtive movements from behind a concrete barrier and at one point briefly raised his weapon into a firing position. The agent said he felt his safety and that of his fellow officers was threatened, and his testimony on direct examination was filled with drama and emotion.

 “At one point I said a prayer and asked God to take care of my wife and children if I didn’t make it out,” Swanson recalled. “I said an ‘Our Father’ and went back to work.”

 No shots were fired in the standoff — a fact which, with each added prosecution witness, appears increasingly miraculous.

 The showdown came at the end of weeks of mostly peaceful protest following Bundy’s call for a “Range War Emergency.” It was precipitated by his refusal to pay $1 million in grazing fees and assessments that had accumulated during his two-decade legal battle with the federal government. Using contract cowboys, the BLM was attempting to round up cattle and carry out a court order.

 By April 12, the ratio of guns to good sense was about even.

 At a briefing on the night of April 11, the FBI shared intelligence information indicating the Bundy standoff was attracting dozens of armed militia members. Although the FBI intelligence report on militia activity associated with the Bundy standoff has been mentioned repeatedly in court, to date none of the six defendants has been described as a member or associate of an extremist organization.

 Dramatic testimony aside, the legal issues may not be as simple as the fear federal law enforcement officers felt that day. The standoff occurred hours after the decision was made to stand down, pack up and depart the impoundment site to avoid potential violence.

 They were supposed to bug out. Instead, they hunkered down after Bundy announced to the crowd that it was time to get his cows. Protesters — some of them armed — began crossing Interstate 15 and moving toward Toquop Wash and the federal corral.

 Metro officials, including then-Sheriff Doug Gillespie, eventually intervened. Cooler heads were in the process of prevailing when the rifle-pointing started. This may be why there’s evidence that police officers and Nevada Highway Patrol troopers were calm while BLM rangers and a unit of officers from the U.S. National Park Service looked like they were defending Fort Apache.

The lack of comprehensive communication between agencies that day deserves serious study. At times during testimony jurors could have been forgiven for wondering just who was in charge.

 On cross examination, Swanson admitted he repeatedly refused orders from superiors to put away his weapon, stand down and prepare to leave the impoundment site.

 “I told him that I had an immediate threat in front of me,” Swanson testified.

 It didn’t keep some others from packing up — or turning their backs to the immediate threat Swanson said he believed was present.

 Although he eventually backed away from his position, Swanson told jurors, “I still felt like there was a threat in front of us.”

 The jury has already seen photos of the defendants carrying weapons. They include the man in the black cap, defendant Eric Parker of Idaho, positioned on the northbound bridge pointing his rifle through a jersey barrier toward the officers.

 Swanson wasn’t alone in feeling fear that day. U.S. Park Police Officer Brandon Novotny also prayed and thought of his family before taking his position in the wash as part of a four-person riot team. Armed with a tear-gas launcher, he said the incident pegged the fear meter and he came to believe he would probably “not walk away from the wash that day.”

 Although he recognized none of the defendants, Novotny swore he saw weapons pointed at him.

 Which made for dramatic testimony — right up until the moment he admitted under cross examination that he failed to mention it in his official incident report.

 John L. Smith is a longtime Las Vegas journalist and author. Contact him at jlnevadasmith@gmail.com. On Twitter: @jlnevadasmith

Feature photo of Nevada cows by jeff_bandy on iStock.com.

Lawmakers: Stay in Your Lanes!

Several years ago, a western desert state decided the federal government wasn’t doing the right thing when it came to enforcing immigration laws. That state’s legislature decided to pass its own laws intended to make things right, at least locally.

The right cheered.  The left wailed and gnashed its collective teeth.

That state, of course, was Arizona. Its state law, known as SB 1070, was struck down in 2012 by the US Supreme Court in Arizona v. United States.  In that case, the Supremes determined that the state laws unduly interfered with the federal legal structure, and that most of it was therefore “preempted” by federal law.  Justice Kennedy wrote for the Court, “The ordinary principles of preemption include the well settled proposition that a state law is preempted where it stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress.”

The left cheered. The right wailed and gnashed its collective teeth.

Today, several lawmakers from our own western desert state have decided the federal government isn’t doing the right thing when it comes to enforcing immigration laws. They’ve decided to attempt passage of our own laws intended to make things right, at least locally.

The left cheers. The right wails and gnashes…  You can of course see where this is headed.

SB223, an attempt by some incredibly foolish and short-sighted lawmakers to make Nevada a so-called “sanctuary state,” is profoundly bad policy. It ties the hands of local law enforcement in accessing federal resources in various law enforcement efforts, and forces them to actively obstruct the work of federal immigration officials. Various Democratic lawmakers object to this characterization, saying they’re only trying to free up local law enforcement to focus on local issues, but those folks either haven’t read the bill or aren’t being honest about what’s in it. And in a state where hundreds of millions of dollars spent on billionaires’ sports fantasies are justified because we need to “put Nevadans back to work,” incentivizing tens of thousands of new laborers to flood the job market from other states seems somewhat unwise.

But worse than the policy merits is the fact that SB233 is undoubtedly unconstitutional, especially after Arizona v. United States. It is rather obviously an “obstacle to the accomplishment and execution of the full purposes and objectives” of federal law. And that makes debating immigration on the state level a colossal waste of time.

What happens when a legislature wastes time on things falling well outside of its competence or authority?

Meh. There’s always next session for that stuff. We have a base to keep riled up!

But our legislature isn’t the only government body in need of a little focus and discipline. We also have this:

Do President Trump, the FBI, and the U.S. Congress really have nothing better to do than be the state weed police? Is there any sane reason whatsoever for the federal government to screw around with local experiments in marijuana legalization, when so much else is on their plates?

Please don’t try to answer that, Mr. President.

To his credit, State Senate Majority Leader Aaron Ford has called on the feds to butt out.  I hope Attorney General Adam Laxalt, who up until a few months ago seemed to relish any opportunity to battle federal overreach into what ought to be local regulation, is intellectually honest enough to keep up that aggressive pro-federalism stand no matter which party’s president is doing the overreaching.

***

I was sympathetic with Arizona’s efforts to help enforce and to supplement federal immigration laws, and yet I believe the Supreme Court was right to invalidate the state’s attempts. I voted against the legalization of recreational marijuana, and yet I object to the federal government’s “crackdown” on states that have chosen to legalize the drug.  

Our federal Constitution brilliantly defines separate roles and responsibilities for our different governments, setting up important boundaries between them. When governments try to do everything, they wind up doing nothing very well. When they reach into areas they’re unequipped to handle, we all lose, regardless of our policy disagreements.

Let foreign policy, including which foreign nationals we allow to enter and remain in our country, be determined in Washington. It’s not as if Nevada voters have no voice in national affairs. Let education, drug regulation, public land management, and the like stay close to home.  Our lawmakers on all levels will serve us best when they keep themselves in their Constitutionally assigned lanes.