Some drug possession penalties don't make sense

Photo of gavel on scale of justice

If there’s a common thread that runs through our criminal justice system, it’s drug addiction. Without it, my caseload as a prosecutor would probably be one-tenth of what it is now. That isn’t to say that 90 percent of my cases are drug possession – far from it. But when you see people breaking into houses, stabbing their roommates, stealing your identity, or robbing the local fruit smoothie joint at gunpoint, it’s a safe bet they aren’t living a clean and sober lifestyle.

Nonetheless, because the relationship between drug addiction and criminal activity is so obvious, the drugs themselves remain – and should remain – illegal. But are they criminalized correctly?  

Last month, I wrote about Nevada’s new Sentencing Commission, a body tasked with reviewing and evaluating whether or not our punishments fit our crimes. Since then, I’ve kept a legal pad in my office at work, jotting down ideas for reform as I encounter various rough edges in our criminal statutes that ought to be sanded out. Reconsidering the penalties for personal drug possession is a great opportunity for the commission to break out some nice sandpaper.

Current law and the problem

NRS 453.336 makes it a Category E felony to unlawfully possess up to four grams of a Schedule I – IV controlled substance. Schedule I drugs include things like cocaine, methamphetamine, and heroin, of course, although the entire list is immense. Various prescription drugs, including opiates like codeine and hydrocodone, as well as common antidepressants, are lower down the scale but still carry the same punishment for unlawful possession.

(Marijuana is also a Schedule I controlled substance, but even before legalization the penalties for personal possession were far different, and didn’t even allow for jail time.)

Category E felonies require a judge to grant probation in most circumstances, and diversion opportunities through drug court and other specialty courts are common. But unsuccessful completion of these programs or a probation violation or two, and you’re still looking at a prison sentence of 1 to 4 years. For perspective, most forgery crimes also carry a potential penalty of 1-4.

In most cases, simple possession cases are pled down to misdemeanors. In my experience, this has become more and more common with the increased availability of misdemeanor specialty treatment court programs operated out of our justice and municipal courts. But sometimes someone wants his day in court, either because “those weren’t my pants!” (a far more common excuse than you would ever think possible if you’ve never been a public defender), or because they have a legitimate defense to their charge. What then?

Like any felony, they’re entitled to a jury trial. Even the simplest jury trial takes several days, and disrupts the lives of a hundred or so random citizens who must report for jury duty. Among those random citizens are an increasingly large number who simply refuse to convict on a drug charge, and all it takes is one juror voting to acquit to prevent a conviction and forcing the case to be dismissed or re-tried.

Jury trials can be a hell of a lot of fun (there’s a reason so many movies and TV shows feature them), but consume an enormous amount of time and resources that can’t be focused on more serious crimes. And even if that addict is convicted, he’s unlikely to spend any significant amount of time in prison – rather, he’s probably going to ordered to seek drug treatment, just as if he would have taken a misdemeanor deal.

In most jurisdictions I’ve seen, the vast majority of prosecutors would prefer to handle cases like this at a lower level, but that isn’t universally true. I once dealt with a particularly obnoxious DA who wanted a felony plea for 1.4 ounces of marijuana, and once heard a (now retired) rural district court judge describe mere drug possession as a crime of “moral turpitude.” Prosecutorial and judicial discretion are important components of a just system, but the difference between a routine misdemeanor plea deal and a felony conviction ought not depend so much on which prosecuting attorney just happens to get your case.

Update the law to match reality

For the sake of fairness and consistency, simple possession of controlled substances should be made misdemeanors, at least for the first several offenses. It’s already common practice, so why not make it official? And for repeat offenders, penalties could increase based on the number of prior convictions for similar offenses.

I don’t agree with the idea that we should simply decriminalize hard drugs. There’s no such thing as casual heroin or meth use, and often the threat of legal consequences is the only thing that will get someone to start seeking an escape from the monkeys on their back. And legalizing a product doesn’t necessarily eliminate black markets, make it more available (right, marijuana distributors?), or make meth affordable enough to make tweakers stop stealing to get it.

But dropping something from a felony to a misdemeanor isn’t “decriminalizing” anything. A misdemeanor still carries up to six months in jail, which is often the amount of time judges suspend over peoples' heads to ensure they follow through with their drug treatment programs. (If six months doesn’t seem like much, imagine spending even one month in a cell, away from your job, your house, your pets, your family…)

Felonies in drug cases should be reserved for dealers and traffickers, or for unusual circumstances such as bringing drugs into schools or jails.

Orrin, this doesn’t sound very conservative of you

First, how dare you! Second, my political philosophy is predicated on the idea that the raw power of government ought to be judiciously wielded, and that public resources ought to be marshaled in a way that maximizes the cost-benefit ratio to society. A belief that government’s mandate is to maximize individual liberty also requires that the interests of justice be served in matching sentences to conduct.

Treating low level drug possession cases as misdemeanors serves all of these purposes, and is a place where people of all philosophical stripes can find a great deal of common ground.

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 deputy district attorney for Carson City. His opinions here are his own, and don’t necessarily reflect any official policies or views of the office for which he works. Follow him on Twitter @orrinjohnson, or contact him at


Government takes new approach to Bundy retrial

It wasn’t exactly like Clapton going acoustic, but Assistant U.S. Attorney Steven Myhre got the tune just right in his opening statement for the retrial of four men accused of playing gunmen for Bunkerville rancher Cliven Bundy.

Myhre’s spare, understated introduction of the government’s theory of the case to the jury Monday in U.S. District Judge Gloria Navarro’s courtroom was in substantial counterpoint to the first trial, which began with a dramatic narrative and multi-media event that attempted to illustrate the potential for tragedy during a tense court-ordered cattle roundup on April 12, 2014 in a wash located just off Interstate 15 about 90 miles northeast of Las Vegas.

This time was different. He mentioned the fear officers felt, but he focused in clear terms on the crimes the government contends the defendants committed. In a case positively piled high with video, body and vehicle camera footage, media recordings and citizen snapshots of the event in question, it served to remind jurors that basic and easily understood violations of law had been committed by grownups who ought to have known that waving their loaded weapons in the direction of law enforcement officers might have consequences.

In the first trial, however, only two of the six original defendants were convicted. Jurors declined to convict four others in part, I’ve come to believe, because the crush of media images presented as evidence at trial had the impact of cutting both ways for the triers of fact. Although much appeared incriminating, some also showed BLM officers appearing to overreact under pressure and abuse Bundy family members (some of whom recorded the incidents for publication on the Internet and social media.)

Myhre’s opening was a sure sign the government’s approach in the second trial would be different. Judge Navarro’s decision to narrow the evidence frustrated the defense, but also provided a reminder that criminal trials are about the charges in the indictment, not the political beliefs of the accused.

Judge Navarro made it clear the door was closed to a jury nullification defense -- a finding by a trial jury that contradicts the facts and the law sometimes because the law is considered ill-fitting or unjust. In other words, although by the end of this second trial jurors may question the competence of federal law enforcement, doubt the gravity of Bundy’s long battle with the BLM, or even think the land in question ought to be controlled Nevadans instead of the federal government, that doesn’t excuse them from trying the defendants on the charges.

On pro-Bundy websites, the judge is essentially accused of conspiring against the defendants with former U.S. Sen. Harry Reid, whose criticism of the rancher and efforts to create the Gold Butte National Monument outside Bunkerville have been roundly vilified by the right.

There’s a reason, of course. The legend of Cliven Bundy plays well with hard-core conservatives.

Having less than a mountain of evidence in play, while not as dramatic as some would like or as distracting as the defense would hope, will help jurors to focus on the crimes alleged. That, at least, on Monday appeared to be the prosecution’s emerging strategy.

The prosecution also emphasized the defendants’ affinity for the right-wing militia movement. Myhre informed jurors that the defendants responded to a call to arms from “Operation Mutual Aid” organizer Ryan Payne and members of the Bundy family to come to protect their lives and property. Right-wing media sites such as Alex Jones’ Infowars contributed to the sense of panic in the West. The Bundy family’s own social propaganda videos fueled interest. By their own admission, that led heavily armed militia-associated supporters to travel to the Bundy Ranch, where many wound up participating in the standoff, not with signs or banners, but with semi-automatic rifles. They stalked and pointed weapons at federal law enforcement officers as they attempted to stand their ground.

In interviews after April 12, the self-styled minutemen bragged that they were on the scene in Nevada to help protect Bundy family and the crowd. They failed to acknowledge that the presence of hundreds of unarmed protesters and approximately 40 riders on horseback provided them with cover that April day.

With less to work with, defense attorneys figure to have a much more difficult duty this time portraying their clients as outraged citizens exercising their Constitutional rights. While that fact may be true, it doesn’t excuse pointing loaded rifles at federal officers.

It became absolutely clear in the first trial that the biggest reason the court-ordered cattle impoundment was called off was the fact law enforcement learned that the Payne-Bundy call-to-arms was drawing dozens of armed men to the protest. The potential for violence was too great, and the poorly coordinated roundup was called off.

For those of you still befuddled by the hot air and prattling about the Constitution, remember first that Bundy’s refusal to pay his grazing fees dragged through the system for two decades. By the time of the showdown outside Bunkerville, the BLM was carrying out two court orders. Contrary to a lot of armchair constitutional scholars, its employees weren’t overstepping their ground; they were standing in the middle of their jurisdiction.

Add Bundy’s absurd demand that then-Clark County Sheriff Doug Gillespie order his Metro officers in one hour to disarm federal officers, stack their guns in a pile on the makeshift stage at “Camp Liberty,” and bulldoze the entrance booths to national parks and recreation areas in the region, and it puts the armed participation of the defendants in another light: a light of extremism. Dressing it in a hat and boots and waving a copy of the Constitution doesn’t change that.

After the standoff, supporters of the rancher hung a banner boasting, “The West Has Now Been Won.” But that wasn’t true, either.

Fanned largely by right-wing media and those who would ultimately benefit from the large-scale deregulation and privatization of public lands, a lot about Bundy and the standoff has morphed into legend.

Expect the retrial of his volunteer gunmen to provide a reality check.

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

What the fight over net neutrality is really about

by Chris Schidle

Some people would have you believe that the fight over net neutrality is about over-regulation and stifling innovationUnless you consider "more ads" an innovation, this couldn't be further from the truth.

Understanding the goals of ISPs

To understand this point, it helps to know some facts about America's big ISPs (Internet Service Providers):

What is net neutrality again?

If you are still unsure about what net neutrality means, the Electronic Frontier Foundation provides an excellent and concise primer. To quote it:

Network neutrality—the idea that Internet service providers (ISPs) should treat all data that travels over their networks fairly, without improper discrimination in favor of particular apps, sites or services—is a principle that must be upheld to protect the future of our open Internet.

At the core of net neutrality are rules against blocking, throttling, and paid prioritization of online content or services. This means that News Corp. (which is one of the six big companies that control 90% of U.S. media) can't pay for a fast lane for Fox News while visitors to The Nevada Independent are stuck in the slow lane, staring at a loading screen.

Why classification matters

The debate over net neutrality revolves around whether ISPs should be classified as "telecommunications" or "information" services. The Electronic Frontier Foundation explains the difference:

Under the Telecommunications Act of 1996, a service can be either a “telecommunications service,” like telephone service, that lets the subscriber choose the content they receive and send without interference from the service provider, or it can be an “information service,” like cable television or the old Prodigy service, that curates and selects what content channels will be available to subscribers.

I don't know about you, but I sure as hell don't want my ISP curating any content for me. This definition of an "information service" conflicts entirely with the idea of having access to a free and open internet.

I would argue that the "telecommunications service" definition still holds up quite well today, despite being over 20 years old. You can think of it this way:  ISPs provide the "pipes" for all of your internet data, and you pay to access them. That's it. They are forbidden from altering or "curating" the contents of the pipes (thanks to Title II protections). This is essentially what net neutrality guarantees.

But net neutrality can only be enforced if ISPs fall under the "telecommunications service" definition, because those services are governed by Title II of the Communications Act of 1934. Sure, this act was written a long time ago, but it holds up just fine as it simply states that ISPs can't discriminate via their charges, practices, or services.

All I expect from my ISP is to bring the internet—the full and open internet—into my home. I don't need curated content. I don't need my internet access filtered down, or chopped up into "light", "standard", and "premium" access. And I certainly don't need any more ads.

What you can do

The FCC is currently taking public comments on a draft proposal that it has the audacity to call "Restoring Internet Freedom". The public comment system has been plagued by attackscontroversy, and email address leaks. Still, this is the best way to make your voice heard. I recommend using the EFF's Dear FCC tool to simplify the process.

Chris Schidle is a freelance developer in Las Vegas building ethical software for the web. He occasionally writes on his blog.

A bad week for government management of economic activity

The Nevada Legislature building as seen in Carson City on Feb. 6, 2017.

“State of Emergency?! Because you ran out of WEED? Ha, ha!” So went the text from an old (non-Nevadan) buddy of mine earlier this week, after seeing our state become the butt of some less-than-flattering national news coverage.

Hey – remember when people said legalizing it would rid us of black markets?  Ha, ha!

This shouldn’t be hard. There’s nothing new or novel about growing a crop, processing the harvest for market in some way, and making it available to consumers for sale. I mean, I know we don’t have that many farms in this desert state, but still. Agriculture is sort of human civilization’s thing, after all, at least originally.

The only difference between marijuana and any other crop is that it’s an intoxicant. OK, fair enough. We want some additional regulatory safeguards so kids aren’t buying it at the Mini-Mart along with gummi worms and MAD magazines. But we already do that (more or less) with booze, porn, cigarettes, guns, slot machines, and even spray paint. So that requirement shouldn’t be a show stopper, either.

Nonetheless, after gangbuster sales the first week, retailers were running out of product. Why? Because we decided to add all sorts of unnecessary regulatory layers to our marijuana production-distribution-sales loop.

I say “we” very deliberately, because this wasn’t some secret legislative back-room deal in Carson City. It was all of us, together. Well, those members of our citizenry who voted for Ballot Measure Question 2, most of whom never bothered reading the fine print.

(This reminds us of two things:  One, that ballot initiatives are a foolish way to implement public policy, especially on complex regulatory issues, and two, that people super eager to get their hands on weed ought not be counted upon to pay attention to fine print.)

Not to worry, though.  The answer to an excess of regulations is… emergency regulations!!!

The proposed regulation would create a structure for the taxation department to determine whether there are an insufficient number of liquor distributors to serve the market based on factors such as historical demand for marijuana and operational needs of dispensaries including 24-hour deliveries. That could pave the way for marijuana businesses to enter.

Vagueness in state regulations on how to make that determination of insufficiency was one of the flaws cited by the judge who ordered the injunction.

Do you know who is really good at determining how many businesses are necessary to meet consumer demand? Consumers and businesses.

Too few retailers/producers/distributors? Green-thumbed entrepreneurs are (or should be) free to profit from that demand. Too many sellers? The “excess” businesses will improve, find new markets, or fold – and no regulatory body has to lift a finger. A person who grows weed also wants to distribute and sell as much as she can? The government has no reason to care one way or the other, as long as the taxes flow into the state coffers.

And guess what?  Due to the status quo, those taxes we didn’t have last month but are now utterly and irrevocably dependent upon are now no longer freely flowing. Another all-too predictable “success” for central economic planning by the government.

I’ve said it many times in this space, and I’ll say it again – the only purpose of this body of pot distribution law is to prop up a corrupt system wherein a tiny number of well-connected businesses who could never survive in a free market get statutory protection against legitimate and almost certainly superior competition.  I mean, the first (and one of only two) liquor distributor who has gotten a license to date is called “Crooked Wines”.

Given the protectionist and fundamentally unfair nature of the entire “booze distributors get first crack at marijuana profits” thing, one could almost be forgiven for thinking that name has some hidden layers of meaning…


And then, of course, comes the news that Faraday Future won’t be building a factory in southern Nevada after all, after a special legislative session pledged millions of dollars to that company to get them here. Fortunately, according to state officials, the deal was structured such that we wouldn't technically lose any taxpayer money if this were to happen.

But when the state government looks like over-eager suckers lining up to fund the next Springfield Monorail (again – see Raiders Stadium), it makes us a target for other too-good-to-be-true “investment” schemes and erodes the confidence of other, more stable potential investors. And the too-common practice of crafting business-specific regulations, as we’ve done with Tesla and others, not only creates a confusing legal mess, but is fundamentally unfair to the Nevada businesses large and small who are already here.

It was a bad week for people who favor robust government control of Nevada’s economy, or the nascent industries so important to its growth.


Cars that haven’t been built yet, and a “new” vice – this week, the predictable government failures to take an active role in managing various consumer industries has been relatively harmless.

Not to worry, though.  Seeing how the state struggles so much to provide consumers mere luxuries, thank goodness no one would ever think it was a good idea to give that same government a distribution monopoly on far more critical “goods” like education, publicly available transportation options, or health care services.

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 deputy district attorney for Carson City. His opinions here are his own. Follow him on Twitter @orrinjohnson, or contact him at

Photographs of President Trump scarce at federal buildings

Something is missing down at the Lloyd D. George United States Courthouse.

Before a visitor has even placed his wallet in the metal detector, a large portrait of the handsome building’s honorable namesake greets friend and foe alike from just inside the front door.

After you’ve passed the inspection by the courthouse security officers in their navy sport coats, the ground floor of the handsome dispensary of justice on Las Vegas Boulevard is decorated with an artistic display of vintage Vegas photographs in the lobby, an interactive directory, and information on the FBI’s Most Wanted List. Engraved in marble is a line from the late U.S. Supreme Court Justice William Rehnquist: “The cornerstone of the federal judicial system is the trial courts ... in which witnesses testify, juries deliberate, and justice is done.”

Those with nothing better to do than scour the building on a recent Friday, as I did, would have seen large portraits of a pair of veteran federal Judges Roger Hunt and Kent Dawson, greeting them as the stepped off the elevator on the sixth floor. A portrait of retired U.S. District Judge Philip Pro handled sentinel duty on the seventh floor, where the curious would also note group photographs of the judges in the Nevada circuit through the years.

But nowhere in the public space will a visitor to the federal courthouse find a photograph of President Donald Trump -- not even adjacent to the wanted posters -- and that has some employees complaining about a lack of fairness and balance. In their memories, the courthouse has always featured a presidential photograph.  Several employees who spoke anonymously said a building manager said hanging the photograph would potentially cause controversy and upset people.

At this point, it’s probably a safe bet that Republicans and Sean Hannity already have surmised former U.S. Sen. Harry Reid is behind the slight. Reid is retired, but the dogged Democrat haunts their dreams, and they’re almost certain he’s responsible.

Not so fast.

Across the Boulevard at the Foley Federal Building, where locals grind their way through bankruptcy proceedings, you’ll experience ample security -- but no hanging likeness of the new president. Not a painting, not a photograph, not even a fake Time magazine cover.

A few questions of the blue coats on duty are met with eye rolls and a knowing silence.  When asked, one points to honored wall space set aside for previous presidents. It is blank, and they have have been instructed to remain low key on the subject of the lack of photographs of the commander in chief inside the federal buildings.

Considering Trump’s many business bankruptcies over the years, you’d think the federal court of reorganization and liquidation would have a few snapshots of him on file. But I digress.

Those federal buildings are maintained by the U.S. General Services Administration (GSA). Surely its local officials would know about the missing presidential photograph. As it turns out, the GSA does hang the official presidential portrait in federal buildings under its control, but only after the approved glamor shots are received from the U.S. Government Publishing Office. But there doesn’t appear to be a government-wide regulation covering the issue.

A contact with the GPO resulted in a response from its chief public relations officer, Gary Somerset.

“The GPO is standing by to reproduce copies of the President and Vice President’s photos for official use in Federal facilities, and will do so as soon as the official photo files are provided to us,” Somerset said. “I do not have a timeline on when GPO will receive those files from The White House.”

I wanted to ask Somerset whether an official presidential TwitPic or social media selfie from @realdonaldtrump would suffice, but then thought better of it.

You can cancel the all-points bulletin and Amber Alert. The official photograph hasn’t been kidnapped. Nor is it a victim of vandals, or petty political intrigue.

Although the fretting GSA official is probably right, posting a Trump photo might not be a welcome sight for some visitors and employees, I did manage to find a picture of the president on display in the lobby of the federal building to the south of the courthouse. The U.S. Attorney’s office is quartered there these days. A security officer understood the question and the controversy, and he pointed to a small framed glossy in the distance. “We have one here,” he said, declining further comment.

It’s not official, perhaps, but at least it’s on the wall.

Back at the courthouse, there was a whirl of activity. Dozens of locals of many nationalities and ethnicities gathered on the first floor. Some were surrounded by family, others stood alone. Those present waited in a long line, but most did so with a smile.

They emerged from a large room with even broader smiles, for they had just finished declaring their loyalty to the United States and were then officially newly minted citizens.

Some waved little American flags. Dozens registered to vote and sought answers at a table set up by the Social Security Administration.

If you really want to know what makes America great again and again, take that picture and hang it on the wall.

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

Speeding downhill with a tailwind

Reno, NV. Public domain photo via Wikimedia.

I read recently that our state economy is bigger than ever, our population keeps breaking records, and even average wages are the highest they have ever been. This is the way to travel, we think.

In a normal economy, statements like the above are a bit like incessantly reporting your car’s odometer reading. Unless you shift into reverse, like we did a decade ago, every day may bring a new record. But it doesn’t tell us much, and we might want to watch the speedometer instead.

How fast is our state economy growing? Are we behind the wheel of a Tesla Model S, or an old Ford pickup with bald tires?

Using data from the Bureau of Economic Analysis, we see that our economy grew at an average rate of 2.9 percent over the last two years, the 6th fastest speed of any state in the nation. This is measured by real Gross State Product, the output value of everything we produced divided by a deflator to adjust for price inflation.

This speed of 2.9 percent is considerably faster than the national average of 2.1 percent over the last two years. As Hunter S. Thompson once wrote, we're on our way to Las Vegas to find the American Dream. But the BEA also says that our state population has been growing at 1.9 percent, again the fastest rate in the nation. This is a bit like driving 90 mph with a tailwind of 60.

Real output growth per Nevada resident is 1.0 percent (the difference between 2.9 percent and 1.9 percent). The national average, however, has been 1.3 percent. We are now driving in the back of the pack, but at least we are no longer driving in reverse.

Part of the reason we are growing even at 1.0 percent is because people have been returning to work as we finally put the Great Recession behind us. Employment in Nevada is growing even faster than population, so our real output per employee has been growing at an average rate of only 0.7 percent per year.

As I explained in last month’s column, “The Simple Math of Economic Growth,” economic growth can be due to short-run factors, such as more part-time workers shifting to full-time work and underemployed workers who find jobs that better fit their skill set. In the long run, growth results from having more people working or more output per worker. More output per worker comes from investing in new capital plant and equipment (not just the replacement of old capital) as well as from improving multifactor productivity. Higher productivity results from better trained workers and better ways to make things.

When employment grows faster than population, this is a short-run factor. Can we count on this to continue much longer? Probably not. Nevada’s unemployment rate is currently 4.7 percent. If the rolls of the unemployed continue to fall at the current pace, we might expect to see 4.1 percent by December. It rarely gets much lower than that. We have been speeding up on the downhill side, but the road will soon flatten out.

Nationwide, new capital investment is currently contributing about 0.4 percent to the annual long-run growth rate, and multi-factor productivity has been increasing by about 0.8 percent per year on average.  If Nevada was like the rest of the nation, our real output per employee would be growing at 1.2 percent per year, not 0.7 percent.

Why aren’t we becoming more productive? One explanation is that our share of skilled workers is not growing much. Education matters. While 85 percent of working-age Nevadans now have a high school diploma, less than a third of us have an associate’s degree or higher. We are still more like Mississippi than Utah.

Can we at least count on population to continue increasing at the same rate? Perhaps, but there are reasons to wonder. In the long-run, does Nevada have enough water for continued population growth? In the short-run, can we house all these new residents? Are we pricing ourselves out of the market?

Housing prices have been rising much faster than incomes, especially in Nevada, where prices have been rising each year by an average of 9 percent more than inflation. Back in 2012, when prices hit bottom, it was safe to say that housing was cheap in Nevada.  By the end of 2014, inflation-adjusted housing prices had caught back up to where they were in the 1980s and 1990s.  Now they are up 20 percent more, and don’t seem to be slowing.

While our inflation-adjusted housing prices are still 36 percent below the bubble’s peak of 2006, we should be getting a little uncomfortable about our homes once more becoming overpriced. If home prices continue to rise, along with apartment rents, can we continue to assume that people will keep moving here at the same rate? If they do, are they moving here to retire after selling a more-expensive home in California, or are they coming here to work? It seems the former group is growing faster than the latter. We are starting to build homes again, but home ownership in Nevada is at its lowest rate in almost three decades, so we have a lot of catching up to do to house those who have already moved here, never mind those still yet to come.

In deciding whether we are driving a high-performance automobile or an old beater, we should also consider what parts of our economy are growing the fastest.

We have seen the most output growth in construction, tourism, and health care sectors. These aren’t the transformative industries we might hope for. Meanwhile, the output from mines, where wages have traditionally been high, has plummeted. Most of the jobs added over the past two years have been in professional services, construction, food service, health care, and warehousing. Manufacturing jobs have increased more slowly than average for Nevada, and almost all of the increase has been in the Reno area.

In Reno, there is much talk about a Tesla effect. Housing price appreciation has been in top 1 percent of metropolitan areas nationwide, and manufacturing employment has been growing, along with professional services, though it is still less than 7 percent of employment. Reno’s unemployment rate is now down to 3.9 percent, though it is not seasonally adjusted and should be taken with a grain of salt. But Reno and its surrounding communities are home to only a sixth of Nevada’s population, much like one cylinder in a V-6 engine that is finally running a little smoother than the others.

What about those record wages? Well, it turns out that average hourly wages have begun to rise, but only at the rate of inflation over the last two years. Real wages are flat, and relative to housing costs they are dropping like a stone. If median family income is starting to finally rise, it is only because more people per family are working. Of course, this beats being in reverse.

What does this suggest for the future of Nevada’s economic growth?  Well, it would take an excess of optimism to conclude we will soon be speeding up. We haven’t yet fixed the engine in this old thing, and once we are out of the hills and the winds die down, we will probably just be puttering along.

Elliott Parker is Professor of Economics at the University of Nevada, Reno. His new book, Nevada’s Great Recession: Looking Back, Moving Forward, with Kate Marshall, will be available later this month from the University of Nevada Press.

Nevada still not making the grade on child well-being

Children are the focus of most policymakers, most everywhere. In an age of heightened political polarization, the hope remains that differences can be set aside for the benefit of the next generation. At least, so the talking point goes.

So, if children are Nevada’s top priority, how is our focus paying off?

A week after the Legislature adjourned, the Annie E. Casey Foundation released its annual Kids Count Data Book, which provides a sobering progress report for Nevada. The Silver State is ranked 47th overall. But there IS some good news to be had – we’re improving in most metrics over time – but not enough to improve our comparative rankings.

Let’s start with education, where despite a concerted effort, Nevada remains ranked 49th overall (Note: data in this report is from 2015, and; therefore, does not reflect even initial impacts of legislation passed during that session.). We made tremendous progress on graduation rates – from 38 percent not graduating on time in 2010/11 to 29 percent four years later. However, the US average rate is more than 10 points lower at 16.8 percent, and while we’re within striking distance of neighbor Oregon, all our hard work has left us ahead of only DC and New Mexico, for a position of 49th of out 51.

Hopefully, the intensive focus on Read by Three is paying off, with a five-point drop from 2010 and 2015. However, at 71 percent not proficient, the state still has a long way to go – we need another six points to catch up with the 2015 national average.

The rest of the education stats are even more stark. Despite a one-point increase in proficiency, 74 percent of eighth graders – almost 3 of 4 – are behind in math. Perhaps even sadder is that the majority of students in every state except Massachusetts is behind, and Nevada’s rank here is actually one of its better ones – 42nd. And 66 percent of our young children are not in school, leaving Nevada 51st of 52. The US average is 53  percent; Mississippi is at 50 percent and the top four states are below 40 percent.

But, as we often forget, education is not everything in a child’s life. Nevada is ranked 45th in Health Care by Kids Count. And while substantially more children are insured, the state is seeing more low-birthweight babies and an increased child death rate. In the Family and Community category, Nevada also ranks 45th. Teen births are substantially lower in 2015 than they were in 2010, and more children are growing up in a household headed by a high school graduate. But a greater share of children are in single-parent families – almost 4 in 10 – and living in high-poverty areas.

This leads us to the final category: Economic Well-Being. The Silver State is surprisingly high here at 40th place, and saw improvements over the prior report in all four metrics. Still, one in five children live in poverty. One in three have parents whose employment is not secure, and live in a household where housing costs are a burden. And 10 percent of teens are not in school and not working – and it’s not immediately clear how much of our improvement comes from teens staying in school vs. getting jobs.

Taken together, this is concerning from a moral as well as economic standpoint, as our ability to attract and/or retain the best companies, entrepreneurs, and workforce depends on being able to provide a positive and healthy environment for the state’s children.

It seems the campaign season is already upon us. Maybe candidates should be pushed to provide not just a plan to continue climbing out of our K-12 hole, but also to reduce poverty, improve the quality of employment, dramatically increase participation in preschool, and improve health outcomes to match gains in coverage. If they don’t, regardless of their party or policy approach, then perhaps their commitment to Nevada’s kids, and even to economic development, is not as big of a priority as they make it out to be. It IS the moral and economic question of our time as Nevada residents, and as registered voters as well.

John Restrepo

John Restrepo, the author of this op-ed, is an economist and Principal of RCG Economics. He is an expert in regional economics and forecasting in Nevada and the Mountain West.

Disclosure: John Restrepo co-publishes the Stat Pack, a client of the communications consulting firm owned by The Nevada Independent’s managing editor, Elizabeth Thompson.

Why over-regulation is a threat to the Internet 

By Marcos Lopez

What if the federal government regulated modern automobiles using laws intended to oversee the horse-drawn carriage industry? What if our hospitals were held accountable to standards created before the development of antiseptics and anesthesia? 

If those scenarios seem ridiculous, then you might be dismayed to learn that the Obama Administration implemented a policy just as outlandish: regulating the internet with an 80-year-old law written to manage 1930s telephone systems.  

In 2015, the Federal Communications Commission (FCC), under the leadership of its Obama-appointed Chairman Tom Wheeler, used Title II of the Communications Act of 1934 to reclassify the Internet as a public utility, opening the door for massive government overreach that would allow the FCC to micromanage how the internet develops.

Known as “net-neutrality” the innocuous-sounding regulation essentially took the internet out of the hands of tech industry engineers and entrepreneurs and put Washington bureaucrats and lawyers in charge of it instead—a move that would stifle innovation. 

During the 1990s and 2000s, the Internet blossomed from a nascent technology few of us had ever heard of to the defining breakthrough of our time that has profoundly changed our daily lives. It did so in large part because it was subject to fairly few regulations. The visionaries and entrepreneurs who created the programs and applications all of us rely on could follow their ideas wherever they took them—without having to check a government rulebook first.

It’s hard to imagine that the same rapid pace of change and advancement would have been possible if we had regulated the Internet like it was any other utility.

In fact, studies have shown that the mere threat of utility-style regulations have reduced investment in broadband networks by tens of billions of dollars for the first time ever (outside a recession). This is important because as Ajit Pai, the new chairman of the FCC, notes, “We need massive investment in networks going forward…The infrastructure of the internet isn’t like slow moving utilities. It’s not a water company. There are a number of [Internet service providers], big and small – 4,400 of them.”

For a preview of what these regulations would have in store for us, one need only look to Europe which has been struggling for years under oppressive treatment of the Internet. Per household investment in broadband has been half that of the United States and as a result, there are fewer networks and poorer coverage of fourth-generation wireless technology. 

Thankfully, Chairman Ajit Pai recognizes the risks burdensome restrictions would pose to the Internet. He has put forth a proposal to rollback the previous administration’s regulations and no longer classify the Internet as a public utility. Chairman Pai explains, “The entire predicate of government regulation should be that there is, or is highly likely to be, a fundamental market failure that warrants pre-emptive regulation… But there was no evidence of that in 2015.”

The better way forward is a modern, light-touch regulatory framework designed for the fast-paced and ever-evolving digital economy.

But even with the new leadership at the FCC, developing the right regulatory framework for our time falls squarely on the shoulders of Congress, whose job it is to write legislation. Let’s hope they’re up to the task and elevate innovation over regulation.

Marcos Lopez is the Nevada field director for Generation Opportunity. Source Watch's information page on the group is here

The Endangered Species Act works for Nevada

By Patrick Donnelly

Nevada’s wide open spaces and unique ecosystems make the state an epicenter for biodiversity – and thanks to the Endangered Species Act, many of our state’s most imperiled and important creatures have been protected for future generations to witness.

At least 340 species in Nevada occur nowhere else on the planet. The state’s rich mosaic of desert and mountain habitats – interspersed with hidden watering holes – provides homes for wildlife, from our cherished big game like mule deer and elk to the most diminutive members of the biotic community like pupfish and springsnails.

The Endangered Species Act has proven invaluable in conserving these critical public trust resources. Passed in 1973 with overwhelming bipartisan support, the Act was signed into law by Republican President Richard Nixon. This history is important: until recently, the conservation of our country’s vulnerable plants and wildlife has been an issue that united politicians across party lines.

Politics aside, the Act enjoys broad public support – a 2015 poll found that 90 percent of voters support the law, including 89 percent of Westerners and 82 percent of conservatives.

The Endangered Species Act is our nation’s most effective law for protecting imperiled wildlife. More than 99 percent of protected species have been saved from extinction, including 100 percent of the 43 listed species that occur in Nevada.

Indeed, Nevada is home to some of the Act’s greatest success stories. Our state fish, the Lahontan cutthroat trout, has seen a remarkable comeback since its listing, with 20-pound “monsters” once again roaming the waters of Pyramid Lake.

Meanwhile our state reptile, the desert tortoise, has inspired hundreds of thousands of acres of habitat preservation across southern Nevada, preventing this venerated Mojave Desert icon from going extinct. And the many endangered and threatened plants of the Amargosa Basin are permanently protected and thriving at Ash Meadows National Wildlife Refuge, a gem near Las Vegas which was created for the express purpose of conserving endangered species.

The Act can protect species in more ways than just through listing. The greater sage-grouse experienced catastrophic declines across its range, which includes a large swath of central and northern Nevada. To avert a listing, an unprecedented collaboration of federal, state and local governments, private landowners, ranchers, corporations and NGOs united to form the Sage Grouse Initiative. A series of voluntary conservation measures, combined with strong land management reforms from the federal agencies, has helped bring about the possibility of the grouse’s recovery.

While more could be done to save the sage grouse, these measures are a good start.

On a much smaller scale, the proposed listing of the Amargosa toad in Beatty, Nevada, inspired a community to come together and restore their riverine ecosystem. Now the Nevada Department of Wildlife reports that the toad’s population is on the rise.

Unfortunately, despite broad public support and an unparalleled record of success, some of Nevada’s elected representatives appear bent on derailing the successes of the Endangered Species Act. Three of Nevada’s most prominent politicians have recently launched badly misguided attacks on the Act.

Sen. Dean Heller (R-Smith Valley) has been Nevada’s most public Endangered Species Act opponent, repeatedly attempting to gut the law through unpopular legislation that has never been given a floor vote. His most recent and possibly most egregious attack on the Act is his so-called “Endangered Species Management Self-Determination Act,” introduced with Sen. Rand Paul (R-Kentucky).

This bill would immediately strip protections from all endangered species until Congress passes a “resolution of approval” for each species – putting politicians ahead of scientists and turning the fate of America’s wildlife into a political football. The bill would prevent any protections for species occurring in only one state, pulling protections from as many as 1,100 currently listed species, including more than half of the 43 in Nevada. Sen. Heller’s legislation would also eliminate the ability of ordinary citizens to help protect endangered species through petitions to list species. Research has demonstrated that citizens have identified species at greater risk of extinction and sped protection for species stuck in the process.

Gov. Brian Sandoval recently joined the fray, endorsing a vicious attack on the Endangered Species Act by the Western Governors Association (WGA). Sandoval has often been portrayed as a moderate voice in Nevada politics, but there was nothing moderate about the WGA resolution. Like Sen. Heller’s radical legislation, WGA policy resolution 2017-11 recommends delaying lifesaving protections for at-risk wildlife and curtailing the ability of ordinary citizens to challenge agency decisions in court. The resolution would weaken critical habitat protections in areas essential for species recovery and tamper with the Act’s “best available science” mandate. Like Sen. Heller, Gov. Sandoval wants to gut the Endangered Species Act.

Finally, Nevada’s attorney general and putative gubernatorial candidate Adam Laxalt (R-Reno) filed a lawsuit against the U.S. Fish and Wildlife Service last November, attempting to overturn important rules which safeguard critical habitat for endangered species. His press release regurgitates stale rhetoric about “burdensome federal overreach,” while offering no solutions for how imperiled species would otherwise be saved. This stance should come as no surprise: Laxalt actually campaigned in 2014 on an anti-Endangered Species Act platform and participates in clandestine meetings funded by fossil fuel interests like the Koch brothers.

From the Devils Hole pupfish to the Mt. Charleston blue butterfly, from the sage-grouse to the desert tortoise, the Endangered Species Act is essential for Nevada’s wildlife. It is unfortunate that some of our politicians have succumbed to the radical anti-environmental agenda that has swept across the Republican Party. Thankfully for Nevada’s endangered species, their attacks have proven unpopular. The Endangered Species Act remains the law of the land and will continue to save our species from extinction with support from the vast majority of Americans.

Patrick Donnelly is the Center for Biological Diversity’s Nevada wildlife advocate and lives in Las Vegas.

Widespread voter fraud is a myth

By Eric Redman

​One nearly unremarked failure of George W. Bush was his inability to persuade Republicans that U.S. demographic changes compelled the GOP to transform itself into a party that embraced Americans of all races and ethnicities. He tried. But once his PowerPoint presentations called attention to the demographics, GOP strategists figured it would simpler to hold onto power – at least for a few decades – just by denying various groups the ability to vote, at least at full strength.

​We’re all familiar with some of these denials: Voter ID laws (requiring forms of ID that, disproportionately, the less fortunate among us don’t possess). Challenges to key provisions of the Voting Rights Act. Even gerrymandering is a form of voter suppression: Concentrating African-Americans and Hispanic voters in particular Congressional Districts, allowing them to elect one U.S. Representative by a huge margin rather than make several nearby districts competitive, has helped the GOP retain a U.S. House majority despite winning fewer popular votes than Democrats.

​Our GOP-leaning US Supreme Court has helped enable all this, upholding voter ID laws (in a case where Indiana admitted it had never found a single case of individual voter fraud) and striking down the Voting Rights Act’s central protections. The Act has so successfully enabled African Americans to vote that its protections are no longer needed, the Court reasoned – which is like saying reductions in highway fatalities mean we no longer need seatbelts and airbags.

​“Voter fraud,” with Trump’s “Election Integrity Commission” to root it out, is the latest GOP initiative to suppress votes. It will certainly produce great Fox News chyrons. For example, most of us neglect to inform election officials when we die. So dead people’s names often remain on the rolls for some time. “MILLIONS OF DEAD VOTERS STILL REGISTERED!” Fox News will blare. But most of us don’t leave the cemetery or columbarium on Election Day. The GOP and Fox News won’t mention that it’s okay, not fraudulent, for a registered voter, dead or alive, not to vote. (Dead people voting is a long-standing GOP fantasy, as in “My granddad lived in Chicago and voted Republican, but since his death he seems to have become a Democrat.”)

​The fact is that individual voter fraud is a myth. One can say this almost categorically. An isolated case may exist here and there. But in Nevada’s general election last year, the only person caught trying to vote twice was a Trump supporter hoping to prove it could be done.

There are reasons individual voter fraud is almost never attempted. The two key reasons: If caught (and nowadays you are going to get caught) you can go to prison for a long time, and even if you aren’t caught your second vote won’t affect the election outcome any more than your first. For an individual, voting twice is simply not a risk worth running, and perhaps more important, it’s an irrational way to spend time. The ratio of risk plus inconvenience to potential reward is basically infinite.

Remember, even voting the first time isn’t really rational, at least in any mathematical sense. Our one vote isn’t going to determine who wins – not once in a zillion elections. For each of us, voting is rational only as an act of civic participation, a demonstration of faith in democracy, a form of periodic communion and bonding with our fellow citizens.

Which is not to say that elections are never stolen. In the US, certainly, elections were sometimes stolen in the past, and election-stealing isn’t rare in some other countries. But crucially, when elections are stolen the place they are stolen is where votes are counted, not where they are cast. Stuffing the ballot box – in any form – occurs at election headquarters or further downstream within the government, not at the polling place. And the polling place is the only place where individuals can vote, whether in person or by mail.

In 1972, I witnessed a form of “ballot box stuffing,” essentially at first hand. The top McGovern staff in Rhode Island quit a few weeks before the election. Richard Paisner and I – law students at the time – were parachuted in to rescue the situation. Not to rescue McGovern, whose loss was inevitable, but to rescue Senator Claiborne Pell, a Democrat who would be unseated if too many citizens simply pulled the GOP “party lever” in voting machines. The only way to save Pell from that dreaded straight-party voting device was to try to slow the accelerating descent of the plummeting McGovern campaign, at least a bit. (Richard and I were asked to help because we’d worked for US senators who would lose their committee chairmanships if Democrats lost the Senate majority.)

Some Rhode Island voting procedures were charmingly quaint. For example, if a voting machine broke during the day, both Democratic and Republican poll watchers were allowed to see and record the machine’s interim totals before the repair person started work. Consequently, both parties trained and deployed designated voters to go break machines at 10 AM, 2 PM, and 6 PM, just to see how things were shaping up.

After the election Richard and I had coffee with Archibald Cox (not yet Watergate special prosecutor) and regaled him with campaign tales. Cox found politics fascinating. So Richard incautiously told Cox one especially colorful detail: “In some Providence voting districts,” Richard said, “McGovern received more votes than the number of registered voters. But, hey, McGovern lost Rhode Island and he lost the election. So, what’re you gonna do?”

Cox sat back in astonishment. “I certainly hope you know what you’re going to do,” he replied. I realized suddenly that I was late for an appointment, and left Richard to try to mollify the unbendingly principled Archibald Cox (never an easy task).

That 1972 voting fraud didn’t take place at the hands of individual voters. Total registration creates an absolute limit on votes cast at any polling place (think about it). The fraud took place where officials tallied and published totals from the voting machines. And that type of voting fraud is among those that all 50 states have since made impossible with elaborate controls, including against Russians and other would-be hackers online (Nevada’s precautions and controls are particularly impressive).

Conversely, however, many eligible US citizens who try to vote find themselves frustrated in their attempts. And this occurs even without any deliberate voter suppression.

Depending on the state, for example, registration may end by mid-October, before interest in the election has peaked; a citizen showing up for day-of-voting registration will be disappointed. Or if a name is spelled wrong on the registration rolls, in Nevada and most states the error can’t be corrected at the polls. (Even unintentionally, minority names may be misspelled disproportionately.) Mail-in ballots may not count unless received – not just postmarked – by Election Day (e.g., in Nevada). And “provisional ballots” seem designed primarily just to calm citizens who find themselves barred at the polls for one reason or another; only a tiny fraction of provisional ballots ever count (Nevada again).

The list goes on. (Hanging chads, anyone?) But it’s a list of inadvertent obstacles to voting, rules that each state adopts to make the jobs of overworked and hassled election officials manageable. After all, states care about their workers, and no state wants to spend more taxpayer money than necessary on semi-annual spikes in autumnal public employment.

Where we’re headed now is someplace different altogether. In the guise of preventing individual voter fraud – as noted, a type of fraud that basically doesn’t exist, primarily because it wouldn’t make sense as an individual activity – we are about to see massive new efforts to make voting more difficult for large swaths of American citizens. And you can guess which swaths.

Trump’s Election Integrity Commission will kick things off – probably with excited headlines about all those dead and relocated people still registered (but in whose names no votes are cast). Contrary to what one might suspect from Trump’s tweets, the Commission will not be trying to establish voter fraud in 2016 or the legitimacy of Trump’s election. They will be trying to assure his re-election, and preservation of the GOP Congress and GOP legislatures that, when it comes to voting, still seem determined to fix the game. So far, they’re succeeding. And so far, the Supreme Court is waving them on.

Individual voter fraud is a myth; a serviceable pretext for Trump, his Commission, and the GOP. Voter suppression is real. It tends to corrupt. And when it arrives, as it now will, on an even larger scale, in the voting procedures of every jurisdiction where more votes might conceivably defeat Republicans, it will corrupt absolutely.

Eric Redman, the author of “The Dance of Legislation” and a former contributing editor of Rolling Stone magazine, is a one-time Senate aide. He has managed campaigns in Washington state and served as a volunteer in Nevada’s general election in 2016, as well as in Montana’s special Congressional election this year. He now lives in Seattle.

Feature photo: People vote during primary election day at Sahara West Library on Tuesday, April 4, 2017. Photo by Jeff Scheid.