On IndyMatters podcast, Attorney General Aaron Ford on Nevada’s eviction moratorium, which will continue through June 30

It has been nearly two months since Gov. Steve Sisolak announced a sweeping moratorium on evictions and foreclosures aimed at keeping people in their homes during the COVID-19 pandemic.

But with June approaching and Sisolak announcing a move into a broader “Phase 2” business and societal reopening effective Friday, questions are percolating about whether the moratorium may be extended, and if not, how people in a state with 28.2 percent unemployment can make several months of rent or mortgage payments that suddenly come due.

Attorney General Aaron Ford — whose office has been charged with enforcing the eviction moratorium — did not offer any specific timeline during a Wednesday interview for the IndyMatters podcast on when the moratorium might end in Nevada. But Gov. Steve Sisolak's official directive Thursday defining Phase 2 of reopening extended directives including the moratorium through June 30.

Ford said his office was preparing for how it can help enforce it and then address what happens when it lifts. 

“I don't get to pass laws that affect these types of issues, I enforce the laws,” he said. “But … we have been engaged in the conversation to see if we could help facilitate conversation and compromise, short of legislation or short of mandates.”

Here are some highlights from the interview. The full interview will be available here on Friday.

Addressing violators of the moratorium

Ford was joined on the podcast by Chief Deputy Attorney General Mark Krueger, who said the office has resolved about 86 percent of the eviction and foreclosure complaints received since the moratorium went into effect, or 367 out of 429.

Krueger said the most difficult complaints are ones when a tenant is renting a room from a landlord — the close proximity of a tenant who is not paying and the person they owe money to can stir up tension, especially under the difficult conditions of the pandemic.

The office has also fielded complaints from people who do not live full-time at their home and find out later that a squatter has taken up residence, or a renter has been subletting a property to other tenants.

But there have also been bright spots. In one case, Krueger said the attorney general’s office contacted a property manager at a multi-family complex and educated that person on the moratorium. Not only did management address the complaints, but they gave a $10,000 donation to a local food bank.

And in another instance, the office assisted an elderly woman who was about to be displaced when the new owners sought to move into a home where she was living. The office connected her with state and local social services representatives, who are working with her on a resolution.

“The biggest successes we've had is just being able to help people stay inside their home, being able to keep them from being evicted, and explaining and educating both landlords and tenants about the directive,” Krueger said. 

Ford said he gets questions frequently about when the directive will lift, especially as the economy begins to reopen and more people regain the ability to pay rent. But he said that decision resides with the governor and the medical experts on whom he relies. 

“That's the governor's call as well as the folks with whom he consults on the science side, on the medical side,” he said. “What I can say is that if the governor decides he needs to extend the moratorium for another month, my office, as it has been in the last two months, will be available to him to enforce that directive.”

The governor’s office has not responded to requests for comment this week about how long the moratorium might last. A current eviction moratorium is tied to the previously issued state of emergency directive ordered by Sisolak, so it will either expire under a new emergency directive or when the state of emergency is lifted.

Ford’s office has been speaking with real estate agent and apartment associations, as well as legal aid organizations that help people who can’t afford a lawyer, to try to address the potential problem of rent accruing and becoming an unaffordable balloon payment when the directive lifts.

One option is to work with tenants, landlords and the courts to craft an agreement that would take into account the outstanding money owed, spur a payment plan and then, through that agreement, categorize the tenant or borrower as no longer in default.

“We are facilitating conversations,” Ford said. “They're all having ideas floating back and forth among themselves, and the idea hopefully is to come to a compromise again, where folks can sign off … on an approach going forward, present it to the decision makers, whether it be the Legislature the governor or whomever the case may be, and they kind of proceed from there.” 

Krueger said the office would consider potential civil or criminal penalties if it needs to as part of the enforcement of the directive, but declined to say if it is pursuing those kinds of responses.

“If it was under investigation, we wouldn't be able to talk about it at this time until that was concluded,” he said.

Early release of inmates

Ford has been an advocate for criminal justice reform in the Legislature and has made it one of the core principles of his attorney general office, stressing in a memo to employees that he wants to see “restorative justice” and wants the justice system to look beyond incarceration and focus on rehabilitation. 

But his office has also defended the prison system against an inmate who sought early release because he’s in his 70s and at higher risk for COVID-19. The Nevada Supreme Court blocked the effort, which included a request to expand early releases to more inmates.

To date, the Nevada Department of Corrections has reported four inmates cases and 20 among staff. Asked about where he stands on questions of reducing the prison population as a strategy to curb the spread of coronavirus, Ford drew a distinction.

“I wouldn't conflate the current issue related to COVID exposure and COVID contraction with criminal justice reform. Those aren't the same thing,” he said. “The conversations can take place separately. And there may be some overlap here and there, but generally speaking, the context is the health and safety issues. And where do I stand personally on that? I believe in health and safety. To the extent I can advocate for protections of inmates as well as those who oversee those inmates, I'm going to do that.” 

A representative of Ford’s office, Second Assistant Attorney General Christine Jones Brady, has a seat on the Nevada Sentencing Commission that recently recommended a modest fast-tracking of a provision of law allowing early release of older prisoners who were not convicted of sex offenses or violent crimes. Jones Brady recused herself on some of the votes, citing a conflict with litigation in her day job.

Ford said he doesn’t have any unilateral authority as attorney general to make decisions on what goes on inside prisons. But he noted that he is a member of the pardons board, which is one board that could take up the issue.

“If it reaches the pardons board, you can rest assured, you know my opinion will be voiced in the appropriate context,” he said.

Mail-in ballots

Ford did not address the merits of a letter sent to his office by Republican National Committee chairwoman Ronna McDaniel asking him to investigate any violation of open meeting laws in an agreement between Clark County election officials and state and national Democratic groups that sued them. As part of the agreement, mail-in ballots for the state’s June 9 primary election will be sent to “inactive” voters in the county — people who are eligible to vote, but have not responded to correspondence from election officials.

Ford, a Democrat, said his office had received the letter and that it will “receive the same level of research and response as any other complaint.”

The attorney general was more direct in addressing a tweet sent last week by President Donald Trump threatening to withhold federal funding if the state continued with the planned mostly mail primary election, which he alleged without evidence would create a “great Voter Fraud scenario.”

Ford, who responded to the threat by saying “we’ll see you in court,” said he was not aware of any state agencies that have had federal funds withheld over the president’s tweeted threat.

“My response was true to my feelings on the issue, and that is there are very limited circumstances in which he could withhold funds, and it is not at the funds that have already been disbursed,” he said. “So, it was unfortunate to see that threat being made, but as attorney general, I will do all that I can to ensure that our sovereignty is maintained, and see him in court if he attempts to do something that's unlawful.”

Updated at 4:25 p.m. on May 29, 2020 to indicate directive is extended through June 30.

Ford implements progressive, criminal justice reform-focused outline for attorney general's office

In one of his first major initiatives since taking office, Attorney General Aaron Ford is instituting a major internal shift in how his office approaches criminal prosecutions.

In a six-page internal memorandum, which was sent to staff of the attorney general’s office last week and shared with The Nevada Independent, Ford and his staff outlined a number of ambitious recommendations and policy goals aimed at addressing the premise that just locking people up isn’t working.

“It is clear simply incarcerating people will not keep Nevada safer and we must use the criminal justice system to rehabilitate offenders so they may rejoin society as productive members,” the document states. “There is no justice without human dignity, fairness and equity; nor can justice exist in the absence of honest transactions between people in the marketplace, at work, or in caring for the most vulnerable among us.”

The report cites statistics from the Boston-based Crime and Justice Institute that found the state’s prison population has grown by about 700 percent since 1980, remains about 15 percent above the national average and with the potential to grow by about 1,200 individuals over the next decade — at a cost to the state of around $770 million.

In an interview, Ford said the policy was his attempt to continue his work as a state legislator in pushing for comprehensive criminal justice reform, while creating an example of how a prosecutor’s office can fairly balance the needs of all parties in the criminal justice system.

“It's a blueprint. It's a policy statement,” he said in an interview. “It is something that I want the individuals who were engaged in the criminal justice system in office here to know that the AG believes these types of things on these types of issues and so yes, it's a blueprint to kind of guide interactions and prosecutions in that arena.”

Although the directives only apply to crimes in the jurisdiction of the attorney general’s office, the memorandum is one of a veritable policy-wish list of comprehensive and progressive stances toward curbing overaggressive prosecutorial behavior and decreasing incarceration embraced by any elected prosecutor in Nevada, including:

  • Presumptive bail requests for misdemeanors will be “released on own recognizance” or unsecured bail, unless the crime involves child victims, elderly persons, violent or domestic violence or individuals with a flight risk. It also calls on DAGs to consider alternatives to pretrial incarceration, including house arrest, random drug testing, pretrial oversight and other diversion or specialty court programs
  • Calls for adoption of “an office-wide presumption” of not “gratuitously” charging multiple felony crimes with mandatory prison sentences when one crime accounts for the event. This practice of “charge-stacking” has been criticized as allowing prosecutors to unfairly stack the deck against a defendant and get them to accept a plea deal.
  • Diverting individuals who display “credible evidence” of a substance abuse disorder, gambling addiction or other mental illness to “evidence-based” treatment programs and away from incarceration for misdemeanors, nonviolent or low-level offenses.
  • Encourages office to recommend sentences on the lower end of the sentencing range, probation in lieu of prison and three-year limits to probation in routine misdemeanor or felony cases not involving “violence, crimes against vulnerable populations, crimes with a large community impact or those committed by repeat offenders.”
  • “Encourage judicial discretion” by leaving sentencing recommendations open in plea agreements when “appropriate”
  • Require attorney general approval prior to sentencing an individual as a habitual criminal or to charge minors in adult court
  • Work with the state’s Division of Parole and Probation to avoid recommending imprisonment for technical violations of parole or probation
  • Avoid recommending revoking probation “when there is evidence of a person genuinely struggling with drug, alcohol or mental health treatment because the path to rehabilitation is rarely linear”

The provisions of the internal memorandum will apply only to criminal prosecutions under the jurisdiction of the attorney general’s office, which includes crimes related to insurance, Medicaid, consumer and workers’ compensation fraud, all crimes committed in prisons, misconduct by a public officer, sex trafficking and in cases where another law enforcement office has a conflict of interest.

Those areas — as broad of a scope as they cover — only cover a small percentage of all crimes and prosecutions brought forth in the state. It’s something that Ford tacitly acknowledged in an interview, saying he would welcome other district attorneys to adopt the policies, but did not want to give the appearance that he was issuing orders to local prosecutors.

“I acknowledge the autonomy that district attorneys have throughout the state and it is not my intent to impress upon them some mandate from on high that you must do this,” he said. “It is presented as an example of what you can do and you know, if they decide to adopt some of these internal policies and maybe they already have them. I'm not suggesting they don't, but if they decide to adopt some, you know that's welcome.”

Ford said the policy was inspired by other Democratic attorneys general, including Delaware Attorney General Kathleen Jennings who in March released a similar internal memorandum outlining 37 reforms to the office and its conduct related to charges, bail, plea deals, sentencing and nearly every aspect of how her office conducts business.

The memorandum only creates two new responsibilities for the attorney general — determining whether or not to approve moving to sentence an individual as a habitual offender and whether to charge juveniles in adult court. Ford said the document was designed to give as much flexibility and discretion to prosecutors in his office as possible, while still outlining recommendations and suggestions on behavior in the courtroom.

“I trust my people here, and on day two I told them what my philosophy was on criminal justice reform,” he said. “I've worked with my prosecutors hand in hand to help develop this to ensure that it is not something that is far outside the mainstream.”

Christine Jones Brady, Ford’s second assistant attorney general, said that deputy attorneys general in the office had already begun giving feedback and asking how to implement the suggestions in the memorandum into pending cases or sentencing hearings.

“We're working through those, and there probably will be a period of time where we're all learning and looking at things on a case by case basis because every case is unique,” she said.

Ford stressed that the document was meant to lend discretion to prosecutors in the courtroom, and indeed several of the provisions call for DAGs to “aggressively” prosecute violent crimes committed in prison, and to argue for “incarceration and longer sentences when aggravating circumstances outweigh mitigating circumstances or the instant crime involves children, violent offenses, public trust or serious financial fraud.”

“(When) we're talking about heinous, violent crimes, we're not going to talk about (own recognizance) release,” he said.

But the policy isn’t solely dedicated to incarceration and rehabilitation — a significant portion of the policy deals with victim services and notification, including:

  • Ensure victims receive information about “community partners and victim services,” including the state’s Victim Information Notification Everyday (VINE) system
  • Refer people charged with prostitution to specialized treatment courts, and make “appropriate law enforcement referrals” if they suspect an individual is involved with human trafficking
  • At or before the time of sentencing, provide victim impact statements to the Department of Public Safety, the court and defense counsel
  • Refer undocumented persons who are victims of crime to advocacy groups, and “work to create an environment where undocumented immigrants feel they can report crime without jeopardizing themselves because of their immigration status”

Ford said the provisions were meant to not only comply with requirements under Marsy’s Law — the voter-approved constitutional amendment outlining multiple rights and protections for victims of crime — but as a way to build trust in communities that have historically not trusted law enforcement.

“What we wanted to do was to create trust at that level because of the poor folks who are undocumented, who are victims of crime, are very hesitant to come forward and we want to through this office indicate to them that we will not only prosecute crimes, but attempt to provide you direction to what services may be provided to you,” he said.

The memorandum also calls for deputy prosecutors to consider “restorative justice” processes where appropriate  — which can refer to meetings between offenders, community members and victims to discuss the harm caused by a certain crime and ways to foster resolution. As an example, Ford cited the climax of the movie Black Panther, where the movie’s villain is invited back to rejoin society in spite of the various misdeeds and evils committed.

“That's a true allegory for what this kind of thing can do,” he said.

Attorney General Aaron Ford memo by Riley Snyder on Scribd