Between July 2019 and June 2020, Nevada police reported seizing more than $4 million worth of personal property, ultimately holding on to more than $3 million worth of cash, vehicles and jewelry involved in criminal activity.
Law enforcement agencies do this through a process called civil asset forfeiture, in which police take possession of ill-gotten money or property that may have been involved in a crime. The idea is to thwart criminal organizations and help fund police activity, but a broad range of interest groups have expressed concern in past years that the system easily leads to abuse and the inappropriate taking of property from people not directly involved with criminal activity.
The complex and emotional subject returned to the Legislature on Monday during a hearing on AB425, a bill heard in the Assembly Judiciary Committee that aims to add additional protections and limits on police use of property seizure and forfeiture as it relates to low-level drug crimes.
The bill was presented by criminal defense attorney Lisa Rasmussen, who characterized the bill as a modest, targeted tweak to the existing set of rules on asset forfeiture for low-level drug crimes.
“What this does is just simplifies the procedure for these small level seizures and forfeitures, and it puts it all in one place where it's much easier and it saves everybody money,” she said. “It saves the state money, it saves law enforcement money, and more money at the end of the day goes to the general fund than is currently happening on the small level seizures and forfeitures.”
But the hearing on the bill nonetheless drew familiar battle lines: criminal justice reform advocates (ranging from public defenders to the ACLU of Nevada to libertarian groups) in favor, and police and prosecutors opposed.
“The process works very well as it is,” Las Vegas Metropolitan Police Department attorney Matthew Christian said. “It's already a very streamlined process. And despite some of the testimony that the members of the committee have heard today, it really isn't complex.”
Essentially, there are two parts to asset forfeiture — seizure (police taking of property believed to be involved with crime) and forfeiture (police or courts deciding to keep the property associated with crime).
The bill changes provisions related to the second half of that equation (forfeiture), and moves any forfeiture of property worth less than $5,000 related to the transportation, sale or trafficking of illegal drugs to a criminal, rather than separate civil, court action. It also prohibits police from seizing any cash amount less than $200, or a vehicle worth less than $2,000, from any forfeiture action with certain exemptions.
Bill advocates said the move from a bifurcated civil and criminal case system to keep everything on the criminal side as it relates to property would simplify and streamline small-dollar property forfeiture issues.
Lee McGrath, an attorney with the libertarian-leaning Institute for Justice who also presented the bill, used the example of a person driving through Nevada and arrested for drug trafficking. People would be processed through the criminal system, but their cars and any loose cash would go through a civil court system.
McGrath said that presented an issue because the median amount of cash seized by Nevada police was only $908, not the imagined “hundreds of thousands of dollars wrapped in plastic and hidden in panels of 18-wheelers.”
The small median amount of property seized combined with the bifurcated process of having criminal charges against a person (while property forfeiture is dealt with in civil court) meant that most people with assets seized ended up just walking away, as the cost to litigate for the return of property often exceeds the value.
“So even if you were as innocent as Mother Teresa, if you only had $908 seized from you, it would be irrational to hire a private attorney like Ms. Rasmussen to help you try to get back your $908,” he said.
The last major revision of the state’s laws on asset forfeiture came in 2015, when a group of Republican lawmakers led by former Sen. Don Gustavson passed SB138, which required police agencies to annually report information on seizures and forfeitures to the attorney general’s office, and also required setting limits on forfeiture, including staying any forfeiture actions until the conclusion of a pending criminal trial, requiring property be returned if charges are denied or dismissed and forcing police to first file a request for forfeiture with a district court.
In 2019, state lawmakers debated another measure that would clamp down on civil asset forfeiture procedures (requiring a conviction for forfeiture proceedings, and awarding proceedings to a state education budget account instead of a law enforcement agency). The bill, AB420, passed the Assembly on a 36-4 vote but failed to advance out of the Senate.
The Institute for Justice gave Nevada a “D-” grade on its civil forfeiture laws, saying that the state had “weak protections for innocent owners” and gave police a “strong financial incentive to seize.”
Supporters of the bill said it would help equalize access to justice for poorer people, who often don’t have the resources or time to dispute small-dollar forfeiture cases.
“Wealthy people accused of crimes are able to hire counsel to litigate forfeiture, which makes sure that it's only done when fair and necessary,” Jim Hoffman, an attorney representing criminal defense advocacy group Nevada Attorneys for Criminal Justice said. “But poor people accused of crimes can't afford to hire counsel, depriving them of one of the most basic protections that our system has.”
Rasmussen said she had attempted to work with police agencies including the Las Vegas Metropolitan Police Department in the past, but couldn’t get them to agree on any changes to the current forfeiture structure.
“The current forfeiture scheme is broken, because it doesn't address all of these small amounts that are seized and subsequently forfeited where someone doesn't have the resource to appear in a civil case and to litigate whether or not they should have their money back,” she said.
But John Jones, a lobbyist for the Clark County district attorney’s office, said that he was only contacted by Rasmussen last Thursday regarding the bill, and he outlined numerous issues with the legislation that he said gave criminals too many opportunities to continue holding on to ill-gotten property gains, ensuring that “crime does pay.”
“Now, I highly doubt the proponents of AB425 think crime should pay. I'm not impugning them that way at all,” he said. “But what I am saying is that this bill has some significant issues, and it creates confusing language and duplication of processes. The reason is simple. This bill is trying to place a civil process into criminal law, and the two procedures do not fit well together.”
Jones said the bill’s focus just on narcotic-related offenses would have the unintended consequence of looping the district attorney’s office into civil procedures for forfeiture, which is now typically handled by Las Vegas police. Having a new statutory scheme just for that type of crime would result in “significant confusion and duplications of efforts and may require significant recordkeeping or counting processes,” he said, adding that his office does “not have the manpower or resources to take on this additional responsibility.”
That sentiment was echoed by Metro attorney Christian, who said that most of the issues raised by proponents of the bill were already addressed in current law, which requires a nexus between the property and alleged criminal act, and that creating a new process just for drug-related crimes was not necessary because the system currently in place “ already affords so many protections to the subjects.”
“The burden is already on law enforcement to prove those things,” he said. “So if any evidence is presented to the contrary, then the money is returned.”
Rasmussen said the intent of the bill was to take a targeted, rather than broad approach, to help individuals most likely to have their property seized improperly.
“Nobody disputes that assets or cash shouldn't be forfeited if they have a nexus to the crime,” she said. “None of that has changed. This is a very narrow, targeted, limited approach at reform, so that we can start having people who are the most vulnerable at least have the representation of counsel to litigate this additional single element.”
Legislators are looking to update Nevada laws that could lead to people being convicted of driving under the influence of marijuana even if they were stopped by police long after they last consumed.
Assemblyman Steve Yeager (D-Las Vegas) on Monday presented AB400, which would remove from the law specific “per se” limits for cannabis metabolites that can be in a person’s blood to trigger a DUI. Proponents of the bill say such thresholds are a poor reflection of how impaired a person is because of how cannabis is metabolized by the body differently than alcohol, and argue they were set at a time when no amount of marijuana was acceptable.
“These limits have nothing to do with either science accurately determining impairment or promoting public safety,” Paul Armentano, the deputy director of marijuana legalization advocacy group NORML, told members of the Assembly Judiciary Committee. “These arbitrary limits were enacted at a time when Nevada imposed blanket prohibition on the possession and use of cannabis for any purpose. This is not the case any longer. Hasn't been for some time.”
While alcohol can be completely eliminated from the body in a matter of hours, THC — the psychoactive ingredient in marijuana — remains detectable for days after a person last consumes, even if the person is no longer high.
Armentano, who was co-presenter with Yeager, said he believes the thresholds came about because they were the “lowest levels of quantification” at the time the law was enacted — in other words, the smallest amount of THC that technology at the time could detect with precision that would be acceptable by a court. He compared the levels to a blood alcohol content of 0.01 percent, which would be detectable in a blood test but well below the legal driving limit.
But the bill faced significant opposition from police, prosecutors and employers worried about the implications for workman’s compensation insurance, who said it would make it more difficult to hold people accountable for being under the influence of marijuana.
Las Vegas Police Detective Dwaine McCuistion, who investigates fatal traffic accidents, gave the example of a woman who drove her Camaro 100 miles per hour into a school zone, striking a car and killing the children inside. When she was taken to the hospital and her blood was drawn, the test showed cannabis in her system.
“If we were to remove the per sethat we have right now, there would be no way for me to prosecute this case. What would I tell the family members at that point?” he said. “I'm sorry I can't prosecute the person who killed your family members. I'm sorry that Nevada law prevents me from bringing you justice.”
John Jones of the Nevada District Attorneys Association said that in serious crashes, police often don’t have a chance to conduct a field sobriety test or observe the driver’s behavior because they have been disoriented or are being rushed to the hospital.
“This bill as currently written would really hinder our DUI marijuana prosecutions,” Jones said. “We don't have the ability to make all the physical observations and perform all the physical tests to prove a DUI beyond a reasonable doubt in the absence of blood results.”
Yeager countered that in the Camaro example, the driver could be prosecuted for other crimes during the incident, such as excessive speed. And he said that toxicology results could still be used in a case, although they could not be the sole piece of evidence on which someone is convicted of DUI.
Opponents also raised concerns about how removing the per se limits from law might make it difficult for an employer to prove that a worker was impaired by marijuana when an accident happened on the job. That means the employer could be on the hook in a worker’s compensation claim even if the worker was at fault for consuming cannabis.
“Many of these workers are operating heavy machinery and conducting hazardous jobs and endanger the safety [of their coworkers] by being under the influence,” said Shaun Meng of the Nevada Self Insurers Association.
Yeager said that he was open to working on the portion of the bill that dealt with workman’s compensation. That portion is connected with the DUI statute in Nevada law, something Yeager said was likely an effort to ensure laws on impairment were consistent with the latest science.
Another criticism came from trucking interests, who say that taking the thresholds out of law could put Nevada out of compliance with regulations that prohibit commercial truckers from using marijuana. If Nevada cannot revoke a commercial driver’s license if someone is found to have used marijuana — which is still considered a Schedule 1 controlled substance at the federal level — the state might lose federal grant money, several people testified.
Lt. Don Plowman, manager of the Nevada Highway Patrol’s Motor Carrier Safety Assistance Program, suggested the bill exclude commercial drivers, who are held to a higher standard than regular drivers because their vehicles are generally larger and more potentially lethal.
Armentano said he didn’t understand the concern because most states do not have per se limits in their law for marijuana DUIs and do not seem to have problems issuing commercial driver’s licenses.
Yeager, who chaired an interim committee studying marijuana DUIs that did not finish its work because of the pandemic, pointed out that even Clark County District Attorney Steve Wolfson has publicly acknowledged Nevada law is murky around marijuana intoxication and needs to be reviewed. Wolfson’s employee, Jones, testified against the bill and wanted the interim committee to do more work before changing the law.
“Impaired driving will continue to remain illegal in our state, doesn't matter what the substance is,” Yeager said. “My main concern with this bill is to make sure that drivers aren't being unfairly convicted of impaired driving when they're not actually impaired.”
The hearing was the first major step for the bill. The committee did not vote on the measure.
Behind the Bar is TheNevada Independent’s newsletter devoted to comprehensive and accessible coverage of the 2021 Legislature.
In this edition: major updates from state grants office initiatives, criminal justice updates, how Vegas police have changed policies after Black Lives Matter protests this summer, a Sisolak Promise Tracker update and some noteworthy numbers from the higher education system.
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Gov. Steve Sisolak is running for re-election.
There hasn’t yet been a big formal launch for the Democratic governor’s re-election campaign (he confirmed re-election plans last year), but signs are starting to creep in — increased activity of a governor-aligned political action committee (Home Means Nevada PAC), going on publicized tours of facilities and buildings and generally touting a relatively apolitical agenda focused on economic development during the 2021 Legislature.
The commingling of Sisolak’s legislative agenda focused on efforts to help the state recover from the COVID-19 pandemic and political concerns with the upcoming re-election campaign are readily apparent in the quick processing of AB106 on Wednesday evening.
In a vacuum, the bill makes sense. It’s an extra $50 million to the Pandemic Emergency Technical Support grant program, which provides grants between $10,000 and $20,000 to small businesses, nonprofits and other applicable groups.
The program initially received $51 million in federal coronavirus relief funds — AB106 adds another $50 million in state dollars to the program, which will be directed to unfulfilled applications submitted last year (more than 13,500 applications for the program were submitted last October, or about 10 times the initial funding available).
Pushing the bill through now follows up on Sisolak’s request for the same in the State of the State, and gets needed dollars to businesses as soon as possible (lawmakers could run into trouble with the constitutional requirement to fund K-12 education first if they delay program implementation into the upcoming fiscal year).
But to be clear, there is a political undercurrent to much of this. It’s why the bill is coming up during the second week of session, why Sisolak himself gave opening remarks and why a cadre of high-profile business leaders (including the Las Vegas Metro Chamber) all testified in favor of the measure.
It’s a safe bet that this bill will pass with bipartisan support, and probably make it to the governor’s office sometime next week (assuming lawmakers don’t fast-track the measure). I’d also expect Sisolak’s office and the governor himself to trumpet the additional program funding once the bill is signed. It also wouldn’t be surprising to see funding end up in re-election material down the road, either.
The marriage of Sisolak’s legislative agenda with political priorities will be a trend to watch over the remaining 110 days (ugh) of the session — how and if there are any divergences between plans to improve the state’s economy and what legislative “wins” the governor wants to run on in what’s likely to be a tough 2022 campaign.
— Riley Snyder
Funding axed for long-delayed grants management software project
It’s estimated that Nevada likely loses millions of dollars in potential federal grants every year because of the lack of a statewide grants management system.
But despite a promise by Gov. Steve Sisolak in his 2021 State of the State address to greatly increase the number of federal grants coming into the state, the state grants office is preparing to enter the next budget cycle without funding for a dedicated grants management system — an absence that a former grants advisory council chair said, “(delays) Nevada getting hundreds of millions of dollars a year in additional federal funding.”
During a presentation Tuesday before the Assembly Government Affairs Committee, interim grants office Administrator Erin Hasty said that the office’s long-held but oft-delayed plans to implement a grants management software program were essentially on ice amid the state’s budget crunch and questionable economic status amid the COVID-19 pandemic.
Lawmakers first allocated funding ($200,000 per year) for implementation of a grants system in the 2017 session — part of a state effort to improve its poor placing in the national ranking of states that bring in the largest shares of federal grant dollars. The recommendation came from a federal grants-focused panel formed in 2015, which found states higher on the national federal grant recipient rankings list tended to have some kind of central software to match grant opportunities with potential applicants (state or local agencies, businesses or nonprofits).
But the program never got off the ground. After the state awarded the contract bid, it was sued by an unsuccessful bidder, which claimed that the former head of the office had tipped the scales in favor of a preferred company. A District Court judge ruled against the state in May 2019, meaning the contract was reopened to potential bidding.
While lawmakers in 2019 again allocated $200,000 per year to the office to fund a contract, the office said that despite filing multiple requests for proposal, no contractors had submitted a bid that would cover everything the office was looking for in such a software system.
“The bottom line is that vendors just could not provide an enterprise system with full functionality for the allotted budget,” the grants office’s website states.
Hasty said Tuesday that the office had instead filed a request for information in February 2020 to get a better sense of what kind of budgetary request they would need going forward to implement such a software system. But that request was pulled in April, given expected “unforeseen budgetary impacts” caused by the pandemic.
“Unfortunately, we had that study lined up and ready to go, but then also due to COVID and the budget shortfalls we reverted that back as well,” she said.
Instead, the office will for the foreseeable future continue plugging along on its current system, previously described by the agency as the “ad hoc and complex” web of Excel spreadsheets currently in use by the agency to manage and oversee grants. The office’s website says the state will pursue funding for a grants management system once the state is “again on solid economic and budgetary footing.”
Sisolak — whose proposed budget otherwise keeps funding flat for the grants office over the two-year budget cycle — in his State of the State address called for the state to increase its share of federal grants by $100 million over the next two years and by $500 million annually by 2026.
— Riley Snyder
Matching grants pilot project a success, but no additional funding expected
The state grants office had a promising response to a pilot program approved in the 2019 Legislature, where the state allocated $1 million to be used for grants that require a state matching fund — a program aimed at capturing federal dollars otherwise left at the table because the state agency or business couldn’t put forward necessary matching funds.
Hasty said the office received 31 applications and committed $970,000 of the original million dollars within the first three months of the program (starting in January 2020), but stopped accepting applications in April 2020 under the assumption that remaining funds would be reverted back to the state’s general fund.
So far, only one matching grant — $45,129 to the North Las Vegas Fire Department — has been fully executed, with the fire department receiving a $451,292 grant from the U.S. Dept. of Homeland Security. According to the office, the grants went to “replace 16 aging cardiac monitors to meet current standards and community need.”
Two other allocations of matching grants (worth a combined $925,049) were approved by lawmakers but still haven’t been notified if they’ll receive the corresponding federal grant dollars.
The other two state-approved pending grant applications include:
A tribal government-backed grant to bring high-speed internet to farms and rural communities; state match of $855,000, with a federal match of $2.6 million.
A nonprofit organization to provide “human and family services,” with a state match of $70,000 and a federal grant of $210,000.
Under current law, the state share of those grants will revert back if the grants aren’t awarded by June 30 (the end of the fiscal year).
Assuming lawmakers don’t introduce a bill funding the program, it’ll close shop at the end of the fiscal year in July. But the grants office said in its report on the program that the brief experiment has potential for future success.
“With the...pilot program’s successful launch and three months of operation, the Grant Office believes it has showed that the pilot program could be a successful, permanent program if fully resourced and staffed,” the office wrote in the report.
— Riley Snyder
Vegas police discuss lessons learned from 318 protests in 2020
Las Vegas police say they updated policies on protests and civil unrest amid criticism over their handling of the Black Lives Matter protests over the summer.
Those changes include placing a person in a recovery position when providing medical assistance (which ensures they are able to breathe), prohibiting the use of the lateral vascular neck restraint (LVNR), making crowd dispersal orders clearer and only deploying pepper spray into a crowd if approved by a commander.
Callaway said in his presentation that many of the arrests from the Black Lives Matter protests were made for not following dispersal orders given after police declared the assembly unlawful for no longer being peaceful. The agency found that people couldn’t hear the order or did not know where to go, so it has adapted with a policy to give dispersal orders at multiple locations around the crowd and to provide an exit route for the crowd to follow.
Callaway said that the agency had not expected Las Vegas’ protests to turn violent as they did in other cities. But among the peaceful majority, some attendees threw frozen water bottles, bricks and rocks at officers, leading to 45 officer injuries between May 29 and June 3. Remaining protests and gatherings through July 31 did not have any more injuries recorded.
“There was a mindset that we had been working good with the community and had good community relationships … there are always ways we can improve but I think that we assumed that it wasn't going to happen in Las Vegas,” Callaway said. “But the vast majority of people that attended them were exercising their First Amendment rights and acting peacefully.”
During 2020, LVMPD handled 318 protests. Eventually, the police agency made a greater effort to create a dialogue with protest organizers ahead of time, which Callaway said resulted in more peaceful marches and fewer incidents by “mitigating any bad apples” that might have later joined in with the protesters.
But sometimes protest leaders didn't want to communicate with the police because of lack of trust, Callaway said.
“We learned a lot of lessons over the past year in regards to protests and civil unrest, and so we've created a new policy to help us do a better job,” he said.
Lawmakers have even more proposals intended to curb what critics see as overly aggressive policing during protests. Democratic Sen. Dallas Harris, for example, wants to include in the law restrictions on the use of rubber bullets and rules on giving sufficient warning before releasing pepper spray into a crowd.
— Jannelle Calderon
Eliminating racial bias in criminal justice
Southern Nevada prosecutors publicly acknowledged they believe implicit racial bias exists — a declaration that could ease the passage of bills to curb the effects of unconscious stereotypes in the criminal justice system.
Lawmakers this week introduced SB108, sponsored by the Senate Judiciary Committee, which would require “any person employed in the criminal justice system in this State to complete periodic training relating to implicit bias and cultural competency.” It would also require the attorney general to adopt regulations concerning that training.
The bill was also mentioned briefly in Tuesday’s Assembly Judiciary Committee meeting, when John Jones, chief Clark County deputy district attorney, said that his office does believe in the issue of implicit racial bias. Jones also said that his office has already received training on the issue and on understanding implicit bias.
During the meeting, Assemblywoman Shannon Bilbray-Axelrod (D-Las Vegas) brought up a blind charging system that could help mitigate the effects of implicit racial bias.
The system, created by the Stanford Computational Policy Lab, has been used by the San Francisco District Attorney’s office, and it works by way of redacting race-related information from the case narratives that district attorneys read before making charging decisions on incoming felony cases.
Implicit racial bias was also a hot topic in 2019 when the Legislature passed AB478, which requires police officers to complete annual training on topics including racial profiling, mental health and implicit bias recognition. Assembly Speaker Jason Frierson (D-Las Vegas) previously said that a state board overseeing officer training is not fully implementing the law, but the board’s executive director Mike Sherlock said that the board does ensure that individual agencies are complying with the objectives for each training topic.
— Sean Golonka
By the numbers
Legislators in the Assembly Education Committee heard presentations Tuesday from two top higher education officials: system Chancellor Melody Rose and UNLV Medical School Dean Marc Kahn. Across those two presentations, a handful of numbers stuck out.
24,000: The number of vaccinations administered by UNLV since the first two coronavirus vaccines were approved and shipped out by the federal government late last year. Kahn said his goal, as the vaccination process continues and a third vaccine candidate nears approval, is for UNLV to remain involved “until each and every eligible person in Southern Nevada is vaccinated for this potentially fatal disease.”
8 percent: The decline in enrollment across Nevada community colleges compared to the prior fall. Likely triggered by the continued widespread use of virtual learning in the wake of the COVID pandemic, Rose touted Nevada’s figures as positively robust compared to some other higher education systems that have been “slammed” by double-digit enrollment losses “upwards of 15 to 30 percent.” Rose said NSHE “very much expect[s] those folks to be back” once learning goes back to business-as-usual (a sentiment echoed by community college presidents in my conversations with them over the last week).
2022: More precisely, late-summer or early fall 2022, about the time the new UNLV medical education building should be complete. In some stage of development for nearly half a decade, construction on the building finally began last year as part of a public-private partnership spearheaded by a private development corporation. The project will likely receive one last push from the state this session: a reinstatement of $25 million in once-cut state funding meant to cover what hasn’t been funded by private donors.
56.9 percent: That’s the number of minority students at NSHE institutions (as of fall 2018, the date of the most recent federal data and the data presented to lawmakers). That number has risen steadily over the past decade, so much so that NSHE had become a majority-minority system by 2015.
51,000: Number of community college students across Nevada, of which 57 percent are female and 58 percent are students of color. It’s nearly half of all NSHE students statewide, and it could also be the total number of affected students should lawmakers follow the governor’s lead on a proposed idea to create a new governance structure for the state’s four community colleges.
During the 2018 campaign, Sisolak wrote in a Reno Gazette-Journal op-ed that if elected, he would “appoint experienced leaders from the private sector" to serve as economic development "ambassadors" for industries such as renewable energy, technology, manufacturing, logistics, mining and rural economic development.
“Deputy directors will be ambassadors to businesses seeking to locate and expand in Nevada, and they will be the primary liaison between my office and private sector companies in emerging industries,” the future governor wrote in the op-ed.
We’ve had that promise listed as “not addressed” since the 2019 Legislature, as there have been no public announcements regarding creation of any private-sector focused “deputy director” positions within the Governor’s Office of Economic Development (GOED). Prior to the publication of our latest update of the promise tracker feature, we reached out to GOED to see if there had been any traction as it relates to that promise.
GOED got back to us a few days after publication of the update, and in a 284-word statement, made the case that the promise had been fulfilled through the hiring of GOED Director Michael Brown — the former head of Barrick Gold USA.
The office also noted that many of its current employees had private-sector experience, and that Brown’s tenure (which began in October 2019) has been largely focused on responding to the COVID-19 pandemic.
“Just four months after Director Brown started, GOED’s role changed radically in response to the pandemic,” the office said in a statement. “That is hardly enough time to have been able to create and add new deputy director positions. Director Brown is committed to the Governor’s vision of bringing in industry experts and ambassadors into GOED when we get to the other side of this budget crisis.”
We’re keeping this promise as “not addressed” for the time being, however. There’s a difference between what Sisolak called for in that op-ed — bringing on dedicated and specified deputy directors to work with private businesses — and hiring a director of an agency with private sector experience.
Tesla agreed to donate millions of dollars to education in Nevada as part of its massive tax abatement deal with the state in 2014, but questions are lingering as to who gets to decide where those donations go, the Nevada Current’s April Corbin reports.
Nevada’s prison system wants to exclude inmates from the state’s Sexual Assault Survivors’ Bill of Rights (Nevada Current).
Carson City businesses aren’t seeing the normal rush of legislative traffic (Las Vegas Sun).
Similar reporting on slower-than-normal business near the capitol (CarsonNow.org).
Nevada Mining Association President Tyre Gray is not only the first African-American head of the mining industry association, but the first African-American head of any trade association in Nevada (Fox5).
Days to take action on Initiative Petitions before they go to the 2022 ballot: 30 (March 12, 2021)
Days Until Legislator Bill Introduction Deadline: 33 (March 15, 2021)
Days Until Sine Die: 110 (May 31, 2021)
Updated at 9:28 a.m. on Thursday, February 11, 2021, to correct the spelling of interim Grants Office administrator Erin Hasty's name.
While the state budget is sure to dominate discussions during the ongoing legislative session, lawmakers haven’t shied from queuing up some heavy-hitting proposals for criminal justice reform.
They plan to take another shot at abolishing the death penalty, work to decriminalize traffic tickets and implement policing measures such as tracking use of force incidents and making it easier for people to sue officers when they believe their rights were violated. Meanwhile, court decisions since the 2019 session have forced lawmakers’ hands after they previously hit an impasse on whether to abolish cash bail.
“We are going to do everything in our power to ensure that that is a focal point of this session and taken very seriously by lawmakers and to ensure that it doesn't get lost in the sea of what is sure to be a session based on the budget,” said Holly Welborn of the ACLU of Nevada.
The 2019 session was viewed in large part as the “criminal justice session” because of a major bill — AB236 — that sought to reduce the prison population through a series of changes to penalties for lower-level crimes and by increasing access to diversion programs.
Representatives for district attorney’s offices said they were in the Legislative Building more than ever before trying to hammer out the details of that heavy lift.
But momentum for action on the issue of police reform swelled last summer when the death of George Floyd in Minneapolis touched off a new wave of Black Lives Matter protests in Nevada and elsewhere. Lawmakers limited police use of chokeholds and rolled back some of the protections afforded police officers who are accused of misconduct, but activists said they want to hold lawmakers to their statements that the legislation from the special session was just a start.
“We had a very modest step forward. Ending chokeholds in Nevada was a 35-year effort, and we finally did that in the state. But what is that worth if there aren't layers of accountability?” Welborn said. “What does that mean if law enforcement has no neutral body who is overlooking and taking a second look at whatever investigations might come out? What does that mean if police unions are able to to shield individuals from accountability?”
Below are some of the themes Nevadans can expect at the forefront of the legislative session.
There are already two bill draft requests seeking to abolish the death penalty in Nevada. A bill to end capital punishment got a hearing in 2017 but died, and the concept was not even brought up for discussion in 2019.
Members of the ACLU nationally and Nevada were “completely in mourning” over a string of federal prisoner executions in the final days of the Trump administration, Welborn said. She called capital punishment a “draconian policy that should no longer exist in state law” and pointed to problems the state has had implementing it, including a protracted legal battle over execution drugs when the state moved in 2018 to put Scott Dozier to death.
“We don't want to be in a situation where — and I doubt that the governor wants to be placed in a situation where — we have an execution order that goes out in the state,” Welborn said. “We have pushed for it every session but we're doing a stronger push because now is the time.”
Sisolak said during his gubernatorial campaign that he generally opposes the death penalty except in extreme cases, and a poll by The Nevada Independent in 2017 showed a majority of Nevadans in support of keeping capital punishment legal. But more recent data has not yet been released, and Sisolak’s office on Friday did not commit to signing or vetoing such a bill if it came to his desk.
While the Assembly is more favorable to abolishing capital punishment — even putting the official committee stamp of sponsorship on the proposal — Senate Majority Leader Nicole Cannizzaro (D-Las Vegas) was noncommittal recently when asked whether she would give such a bill a hearing in the Senate.
Cannizzaro works for the Clark County district attorney’s office. Prosecutors say they will be opposing efforts to end the death penalty in Nevada this session, as they have in the past.
“The majority of Nevada voters support capital punishment in the right circumstance,” said Jennifer Noble, who represents the Washoe County District Attorney’s Office. “The Nevada Supreme Court says it’s constitutional, U.S. Supreme Court says that, and our position is just that the voice of the jurors who sat and heard that case should be honored, not second-guessed by our Legislature.”
Rochelle Nguyen (D-Las Vegas), the vice chair of the Assembly Judiciary Committee, said she thinks the conversation will be broader than what it was in 2017, potentially including faith-based, economic groups, counties and others to consider implications of the policy.
“I think in the past it has always been, like, either you were for or against it,” she said. “I think even between 2017 and going into 2021, the conversation is including a lot more people and I think that is important.”
Sen. Dallas Harris (D-Las Vegas) said she took cues from Colorado to develop an ambitious slate of 10 policing reform changes that will be rolled out in two separate bills.
After what critics viewed as a heavy-handed police response to protesters over the summer, Harris wants to bar police from shooting rubber bullets at people’s torso, head or back.
She also wants to require police to give ample warning and space for people to disperse before deploying tear gas.
“It's not a ban, necessarily. But it makes it very clear that ‘hey, you know, this squeezing people in on both sides and then tear gassing them — no,” she said.
She also wants better recordkeeping on incidents of police using force. Harris pointed to an interview a Metro deputy chief gave to KLAS-TV indicating that she had access to a dashboard where she could see — for every officer in the department — how many complaints had been lodged against them, how many use of force incidents they were in and how many traffic incidents they were in.
“We need to see that,” she said. “That way we can track trends.”
If that’s not feasible because of cost, she at least wants police departments in the state to report data to the federal government. A federal database on use of force incidents only reflects data from agencies representing about 41 percent of officers in the country.
Harris is aware that some reports may be unsubstantiated and said she’s mindful of not sabotaging someone’s career with false information, but is more concerned about aggregate numbers.
“These aren't designed to punish anyone,” she said. “That's the very nature of something that’s systemic. It's not about you, or how great you are, or your partner is ... it's about reforming the whole system so that it operates a little bit better.”
She hopes to require more education of police officers, too. Rather than just a high school diploma, she wants at least an associate’s degree or two years of military service as a prerequisite.
“There's a strong correlation between education and remaining calm under pressure, critical thinking skills, handling stressful situations, being exposed to people who are a little bit different than you just by nature of being on a school campus,” she said.
Another idea in her bill is either a pilot program or a study on crisis response call centers, in hopes that 911 is not a caller’s only option when help is needed. An alternative could connect people in distress to agencies that could dispatch trained mental health professionals to the scene; she’d like to study whether police officers should accompany those personnel.
She compared it to how the gas company is dispatched to the scene of a gas leak because they are best suited to the call, even though a leak is a dangerous and potentially life-threatening emergency.
“Why are we sending police officers to gas leaks?” she said. “That's what I feel like we're doing when it comes to the homeless man who is in front of your business, or when it comes to the person who's clearly just experiencing a mental health crisis.”
She wants to put limits on the use of force, including the presumption that someone is not a deadly threat if they are pregnant or elderly. That presumption could be overcome with proof.
If an officer fails to reactivate a body-worn camera as required by law, Harris proposes there be a “permissive inference” that the missing footage would have reflected misconduct. A permissive inference is a suggested conclusion for a jury but they are not required to make that finding, and it would apply in investigations for legal proceedings but not in criminal proceedings against an officer.
She’d also like to create a “state cause of action” that can be invoked if a person believes an officer violated their rights. If the person is just seeking a policy change, an officer could not invoke “qualified immunity” — the principle that government officials are shielded from civil liability unless the person can prove the officer violated clearly established rights, usually through a previous and very similar case. But the officer could use that defense if the person is seeking monetary damages and if the officer had a good faith belief at the time of the conduct that they were not violating the law.
Her bills also would call for collecting data on traffic stops and have UNLV analyze the findings to see if they are more common in communities of color.
She also wants police departments to establish an early warning system and intervene in some way if there are red flags for a particular officer, such as a high number of citizen complaints, a high number of use of force incidents, or instances of improper detentions or searches.
“Let's give them some more training, maybe it's more intense supervision, before that bias manifests itself in a way that's not reversible,” she said.
And finally, she wants to ban restraint chairs that are used in jails.
“Sometimes they strap people in very uncomfortable positions. They'll leave you there for days. It's just inhumane,” she said.
Harris said she is trying to meet with as many people as she can to get feedback on her ideas before they go primetime. Her only concern is that the issue may be losing momentum, and she’s reminded advocates that with the budget and redistricting taking up oxygen, she may need them to fight a little bit harder for these changes.
“My focus is trying to keep it in the forefront,” she said. “We don’t see the protests in the streets every day like we did. But the issue just — it hasn't gone away.”
Adjustments to 2019 Reforms
One of the capstone accomplishments of the Democrat-led Legislature in 2019 was the passage of AB236, an omnibus bill filled with law changes that ultimately sought to reduce the prison population in Nevada and avert hundreds of millions of dollars in corrections spending over the coming decade.
It was the culmination of intensive data analysis conducted by the Crime and Justice Institute and work in the interim from the diverse membership of the state’s Advisory Commission on the Administration of Justice. The bill, which made a variety of changes that headed off some parole revocations and eased some drug crime penalties, passed on party lines in the Assembly and on a broader, bipartisan basis in the Senate in spite of prosecutor opposition.
Prosecutors note that much of the bill took effect only six months ago — meaning it may be both hard to tell its full effect, and lawmakers may be hesitant to make significant changes as they watch for how things play out. The male prison population in Nevada in November was only about 84 percent of what it had been projected to be, although it’s unclear how much of that can be attributed to the bill and how much might be linked to unusual inmate movement trends related to COVID-control measures.
“We're still working out a lot of kinks,” said John Jones, who represents the Clark County district attorney’s Office. “Some issues have sort of bubbled to the top.”
But there are a few changes prosecutors will be pushing for this session. One is about parole revocation hearings — prosecutors say the bill in some ways tied the hands of judges.
“It used to be a judge could revoke for any violation of probation,” Jones said. “But after 236, a judge is limited in what they can do, depending on what the violation is that's in front of them at the time. So we've had some defendants show up in court with some pretty serious allegations … that don't meet the requirements for actual revocation.”
One example is that while felons are prohibited from having a gun, people with gross misdemeanors are legally allowed to have guns. But some people with gross misdemeanors are on probation and are prevented from having a gun as a term of their probation; prosecutors think it should be easier to revoke their probation if they are found to have one.
“So far, the conversations that we've had with legislators — they've been open to changes, but I think because the bill is so new, they don't want to make any drastic changes right now,” Jones said. “There's some desire to defer, at least until [the] 2023 session, so we can really have a longer period of time to see how the bill actually plays out.”
The Washoe County district attorney’s office wants to study the effect of the bill on the community and public safety at large, rather than just on incarceration numbers. They’ve obtained a grant from the Crime and Justice Institute and are trying to figure out what metrics to be using to quantify it over the next few years.
“With the pandemic, that's sort of hard to quantify because people are staying in their homes,” said Noble. “Is this making our communities safer? Is it an improvement? Do we have better criminal justice outcomes? And that's a question that only time is really going to answer.”
Welborn said she’s also curious about the legislation’s impact, and how much of the current decrease in the prison population derives from the bill as opposed to the unusual trends brought by the pandemic.
“I think it's too soon to tell what the long term impact will be,” Welborn said. “This is going to be over the course of, I believe, a decade where we will really see that large dollar impact and large population impact.”
Advocates have been pushing for years to get rid of cash bail, saying the practice leads to poor people languishing in jail because they can’t afford bail while richer people leave almost immediately. But negotiations on bills to reform bail broke down in the 2019 session, and Cannizzaro pushed a resolution to study the issues surrounding bail as a compromise to keep the issue alive.
“We look forward to shining a light on some of the inequities in the criminal justice system that bail has wrought and bringing that to this body next session to, hopefully, find a solution,” public defender John Piro testified at a hearing for the resolution in 2019.
In a move that upped the urgency of the changes, the Nevada Supreme Court issued a ruling in April 2020 that required significant guardrails as to how the state administers bail. The ruling came in the case of Jose Valdez-Jimenez, who was assessed a $40,000 bail that he couldn’t afford after stealing merchandise from a Victoria’s Secret in Las Vegas.
An interim legislative committee over the summer advanced a list of 16 recommendations for reforming the way the state administers bail, in large part incorporating the decisions from the Supreme Court. The committee has five bill draft requests codifying the recommendations in the committee’s final report, although the actual bills have yet to be introduced.
Among them are requiring bail hearings to be conducted in a reasonable amount of time and requiring the use of federal poverty guidelines when determining a defendant’s ability to pay bail.
Another recommendation puts the onus on the state to prove, by clear and convincing evidence, that the conditions of release they’re seeking are the least restrictive needed to ensure community safety and the defendant’s return to court.
And another proposal requires quarterly reporting of certain information about bail, including data about who is in jail and why, and reports about people who are held on bail less than $2,500 for more than a week.
“A lot of the arguments that we have had in the past were answered by the Nevada Supreme Court in the Valdez-Jimenez decision,” Jones said. “What we're really arguing about is the implementation of the Supreme Court's decision.”
Among those points is how the Legislature should define a “prompt” hearing. Prosecutors say they don’t want to violate a defendant’s rights, but also want to make the requirements feasible for rural courts that do not have the resources to do what Clark County has done — hold initial appearance hearings twice a day, every day of the week and every week of the year.
Prosecutors also want to secure the ability to ask for a short continuance that might extend the time someone is behind bars when they need more time to work on a case.
“Sometimes we need more time when our spidey sense goes up about a defendant based on what we've read,” Jones said.
Decriminalizing Traffic Tickets
Nguyen wants to re-up a discussion about decriminalizing traffic tickets. Under the current system, an unpaid ticket can escalate to an arrest warrant, leading to people being jailed and facing the related consequences for nothing more than an overdue fine.
That can be particularly life-altering for undocumented immigrants, with an unpaid ticket turning into an interaction with immigration authorities through the jail and potentially deportation.
During the pandemic, some local jurisdictions have eased their rules on traffic violations. The Las Vegas Justice Court suspended enforcement of about 270,000 outstanding traffic warrants in April, meaning people would not be arrested for them if stopped.
Nguyen said she hopes to draw on experiences like those that were driven by the pandemic, as well as that of Carson City, which in 2019 stopped adding additional warrant fees and stopped arresting people on the basis of a traffic warrant.
“I was kind of inspired to see that they were able to do it, they're still standing,” she said. “It's convenient when you have someone who tried to do it on their own and we're being innovative, because they can tell us what some of the pitfalls are.”
Prosecutors say they do support the idea of making traffic tickets civil offenses rather than criminal.
“We've looked at some other jurisdictions that do it and I think we can make that work here in Nevada,” Jones said.
Under a civil model, the district attorney’s office would be out of the business of prosecuting traffic offenses, and instead, anyone seeking to contest their ticket would show up to court, along with the officer, and the judge would make a determination based on the preponderance of evidence. Prosecutors say they rarely have the bandwidth to put their full effort into minor traffic cases anyway.
“We're focused on the robberies, the murders, the sex assaults, the serious property offenses,” Jones said. “Oftentimes traffic doesn't get the attention that maybe it should, because our priorities are focused elsewhere, our eyes are elsewhere due to our high caseloads.”
One snag is that traffic ticket fines fund court operations and local government operations. They would have to find another revenue source if income from tickets dropped.
“I think most people would agree it's a horrible way to fund your judiciary, but that's where we are right now,” Jones said.
But, prosecutors say, it’s unlikely that there are large swaths of people who would only pay their fines if they had jail time hanging over their heads, and would flout the penalties under a civil system.
Nguyen said the current system — with penalties that grow if they go unpaid — can even make people less inclined to pay an overdue fine.
“If you get a $200 ticket, and then you miss a payment and all of a sudden that's a $550 ticket, you're probably less inclined or don't have the resources to pay the $550 ticket,” she said. “But if the ticket remained at $200, you might be more inclined or might be more able to do so.”
The strictures of Marsy’s Law, a constitutional amendment approved by voters in 2018 that requires more notification of crime victims during the proceedings against the person they’re accusing, can sometimes be at odds with the goal of holding bail hearings more promptly.
The Washoe County DA’s office is using electronic notifications — including texts and email depending on the victim’s preference — to notify victims of hearings. But prosecutors said it’s been a challenge to have the kind of system where victims can easily log on and understand what’s happening with their case.
“I think people do default to us to be the de facto implementer of Marsy’s Law, and it is just as much the obligation of the court as it is our office,” Jones said.
The ACLU of Nevada has several concerns about Marsy’s Law, including whether requirements to notify victims about court proceedings will interfere with the need to hold initial hearings within 48 or 72 hours.
“If that indeed happens, then that's a clear rights violation,” Welborn said.
There’s also concern about how the law’s requirement that victims be paid full and timely restitution has led to large cuts of money sent to inmates by their loved ones being diverted to restitution. Families complained that the prison system’s initial 80 percent garnishment was too oppressive and prevented inmates from getting funds they needed to buy basics from the commissary; the rate was recently reduced to 50 percent.
“What limitations are we going to place on that implementation?” Welborn asked. “I think we're getting closer and closer to needing the courts to weigh in on exactly what it is that law means.”
Instead, what may be the last potentially major changes to the state’s bail system are alive in the form of Democratic Assemblywoman Dina Neal’s AB125, which was passed out of the Assembly on a party-line vote Friday, but it likely faces an uncertain path as law enforcement and district attorneys question the implementation and effectiveness of the bill.
“I feel like this is going to sound cliché, and you’ve probably heard this a million times, but nobody is really happy with it, which generally means that it’s a decent piece of legislation,” Clark County Public Defender’s Office lobbyist John Piro said in an interview.
The bill creates a “rebuttable presumption” that the vast majority of defendants arrested on suspicion of a crime should be released on their own recognizance (without conditions), and that monetary bail only be imposed if a judge determines other conditions of release are not adequate to ensure a person will return to court. It was amended significantly from its original version, which initially made minor tweaks to what a judge must consider before requiring a defendant pay bail.
The amended measure would require courts to hold “individualized custody review” hearings within 72 hours of any defendant being arrested, including weekends and days that a court is not in session, where a judge is required to review custody status and grant pretrial release if appropriate. During that hearing, a court would be required to issue an administrative order detailing conditions of pretrial release, and the bill also sets a requirement that a person be released with the “least restrictive conditions” outside of first degree murder cases.
It requires judges to condition release — between unconditional release, regular check-ins, home monitoring and requiring cash bail — based on factors deemed necessary for community safety, victim safety and to ensure they appear in court.
Kendra Bertschy, a lobbyist with the Washoe County Public Defender’s Office, said that those provisions in the bill were intended as a way to ensure people arrested throughout the state could expect the same treatment prior to a trial no matter where they might have been arrested.
“Our goal with this bill is just to make sure that everyone has an idea of what the process is going to look like, and then the judge really has to consider the individual, has to consider the facts of the offense, has to consider all those issues before deciding on a bail schedule,” she said. “This is something that’s going to impact anyone who is arrested. People find out what their bail is set at and have this hearing, and they’ll have a different process than they would have prior to this.”
But setting requirements for quick turnarounds on hearings and bail schedules could prove difficult in other counties, Washoe County District Attorney's office lobbyist Jennifer Noble said, adding that the bill as drafted would put stringent requirements on smaller rural courts that would face difficulties in keeping up with the requirements in the bill.
“We want to make sure that the final bill works for all of Nevada, not just certain counties,” she said. “We’ve got an extremely complex issue, and counties that are very different with different needs and different abilities to comply with aspects of the bill. We want to make sure that the bill is something that all of them can comply with.”
John Jones, a lobbyist for the Clark County district attorney’s office, said the bill was still being worked on and as written would “cause more problems than it solves.” But he said his office had been an “integral part” of efforts to improve the bail and pretrial release system in Clark County, and wanted to be sure that any changes made in the Legislature were effective.
“It’s a work in progress,” he said. “But to say that we’re against bail reform is not true. We’re always willing to look and see what other people are doing, best practices, and make the changes accordingly.”
During custody review hearings, the bill would require judges to release any defendant charged with a misdemeanor that does not involve the use of force or violence, and would require any person charged with a gross misdemeanor or lower to be released without conditions as long as the underlying crime does not involve violence or is a sexual offense.
Notably, it also requires any monetary bail not be set on a predetermined schedule, and instead requires bail to be based on the financial resources of the dependent and must be set to “ensure reasonably” the person will appear in court and not pose a danger to the community. It also requires that any defendant eligible for pretrial release not be detained solely for a financial inability to pay bail.
Piro said those provisions were intended to make sure that arrested persons were not stuck in jail on minor charges because they couldn’t afford whatever a judge ordered for bail.
“That’s what's happening right now,” he said. “If you have money, $5,000, $10,000, that’s nothing to you. If you’re homeless, you get caught sleeping on a park bench and the judge sets your bail at $1,000 because that’s the ‘bail schedule,’ you might as well make it a million because that homeless person isn’t getting out.”
Democratic Assemblyman Steve Yeager, who chairs the Assembly Judiciary Committee, said the provisions in the bill had various carve outs for public safety and other concerns for a judge to set cash bail, but that it was intended to give judges a chance to reassess bail if its found a person could not afford it.
“I envision that going into the finances and lowering the bail is going to happen in situations where we're not talking about the crime of the century, and maybe it was a close call between release without bail and bail,” he said.
The bill also makes other changes to bail rules, including prohibiting the state from changing a recommended bail schedule in a criminal complaint if it presents the same case and receives an indictment from a grand jury. It also requires each court to compile and report decisions on individualized custody release decisions annually to state lawmakers, though Piro said that section was likely to be removed amid cost concerns from courts.
The amendment is in some ways a continuation of ongoing discussions and negotiations between law enforcement, district attorneys, public defenders and civil rights groups that began with Democratic Assemblyman Ozzie Fumo’s AB325, which would have more substantially changed the state’s rules and procedures for granting cash bail. Fumo said in a brief interview that he was not involved in discussions on AB125, hadn’t requested to be added as a co-sponsor and hadn’t yet read the bill.
Yeager, who chairs the Assembly Judiciary Committee, said the discussion on bail had centered on both bills but that the “decision was made” to go forward with AB125, which is sponsored by Democratic Assemblywoman Dina Neal.
“We had waivers on both and could have gone in either direction but I think it made more sense to go with 125,” he said. “So really, it is the product of the work that was done on 325.”
Yeager declined to predict whether any major changes to the state’s bail system would make it through the session with only days to go before sine die.
“On the Assembly side, we’re intending to move something out that’s significant,” he said. “We’ll see what it comes back looking like if it comes back.”