Strict deadlines for deciding on freedom are latest big change in Nevada’s bail landscape

At a hearing this spring, activist Jagada Chambers described jail as “a dungeon” where every moment is trauma-filled.

It’s why he and others pushed lawmakers to put a strict cap on how long courts have to give a defendant an initial bail hearing that could mean the difference between spending a few hours in jail, or several days, without being convicted of a crime.

Legislators ultimately passed AB424, a measure that requires that a pretrial release hearing happen within 48 hours — drawing cheers from supporters who want to ensure that people are not kept behind bars for long periods of time simply because they don’t have as much money as other defendants to bail out sooner.

“We have to take into consideration the people that we're talking about here are innocent,” said Chambers, who has worked on voter rights restoration and other issues affecting formerly incarcerated people. “You should make any effort to take appropriate channels to get that handled within an hour because a person in that [dungeon] — it’s irreparable damage.”

The measure, which goes into effect next July, comes after a decades-long push in Nevada and nationwide to end or curtail the practice of using money to broker release from jail. Those efforts have largely hit dead ends in the Legislature — until a landmark decision from the Nevada Supreme Court last year helped force lawmakers’ hands by setting significant requirements for judges who want to use money as collateral for release.

“You put a bunch of cracks in the ceiling and eventually you break through,” said Sen. Dallas Harris (D-Las Vegas), who presented the bill in the Senate along with Sen. Dina Neal (D-North Las Vegas). “This was that session for bail reform.”

Critics of the status quo say using money in exchange for freedom means people are often kept behind bars longer because they are poor, rather than because they pose an actual risk to public safety. Lawmakers drew a contrast between indigent clients unable to bail out and a case involving multibillionaire Henry Nicholas, who was released without bail as he faced charges of felony drug trafficking stemming from an arrest in Las Vegas.

Even a  short jail stint can disrupt a defendant’s job and family life, making it harder to get back on their feet and return to being a productive member of the community. And bill supporters chafe that drawn-out, pretrial detention is happening to people who are presumed innocent.

“$5,000 — for some people that is insurmountable and just amounts to detention. For others, it's absolutely nothing, and that has zero to do with how dangerous the person is to the community,” Harris told The Nevada Independent. “And that is not the goal of our system at all.”

The pivotal ruling came in April 2020 in the case of Jose Valdez-Jimenez, who was assessed $40,000 bail that he could not pay after police arrested him for stealing thousands of dollars of Victoria’s Secret merchandise in Las Vegas. Among other things, the Supreme Court’s order required defendants get an individualized and adversarial court hearing — one that can involve cross-examining witnesses — promptly after their arrest to consider whether they should remain behind bars.  

But how to define “prompt” had been an open question in the year after the court ruling, subject to a wide range of opinions and questions about what can be reasonably expected from smaller jurisdictions. Lawmakers ultimately put parameters on the matter through AB424, which passed 30-12 in the Assembly and 17-4 in the Senate (several Republicans joined Democrats to support the measure).

“Having this standard across the state of, ‘you have to have a bail hearing within 48 hours,’ I think will make a huge difference,” said Washoe County Deputy Public Defender Kendra Bertschy. “How they're being treated really depends on what side of the street they're arrested on. And that's really concerning with the level of justice, and the equal justice that you're given, really depends on what court you end up in front of.”

The outcome hasn’t satisfied advocates who want complete abolition of money-based bail. They expect Nevada will still need private funds supported by donors that bail people out and help them get on with their lives before the 48-hour clock runs out.

“I think they took safe steps this year ... I think they did what was not going to ruffle too many feathers,” said Leslie Turner with the Mass Liberation Project and the Vegas Freedom Fund, which bails people out of jail and offers a wide range of support services to address other needs in their life upon release.

Holly Welborn, policy director at the ACLU of Nevada, described the law as an improvement but not a total transformation.

“We have at least met the floor of what's constitutionally permissible in the bail system in state statute,” she said. “But we haven't really embraced ending the system of wealth-based detention.”

But prosecutors, police and judges — especially ones in rural jurisdictions with smaller staffs — argue the hard deadline goes too far and is “unworkable.”

“It's an unfunded mandate,” said Jennifer Noble of the Nevada District Attorneys Association. “And it's not something where we object to the principle of it ... it's just that we need resources and funding and more people, frankly, because it's not just attorneys that are in this process.”

Others have criticized the bill as going too far in the effort to ease up on a “tough on crime” mentality that prevailed in the 1990s and beyond. Chuck Callaway of the Las Vegas Metropolitan Police Department said he worries about crimes rates going up when he sees statistics about people cycling quickly out of jail, and he senses in some of the Legislature’s recent work “an attitude of not holding criminals accountable for their actions.”

A bail bondsman arrives at the bail window at the Las Vegas Detention Center on July 29, 2021. (Daniel Clark/The Nevada Independent)

How bail works

The commercial bail bonds industry as it exists in the United States has been around since the late 1800s. After a person is arrested, a monetary amount is assigned based on the charges they face, often in line with the guidelines of a standard bail schedule, and loved ones can pay the money in full to get them out. The exception is for very serious charges such as murder, when defendants are constitutionally barred from bailing out. 

That money will be reimbursed if the person shows up to court to face the charges. In situations where loved ones do not have sufficient cash to make bail, they can enlist a bail bonds company to make the payment, but state law allows the bail company to keep 15 percent of the payment as a nonrefundable fee for its services — even if the person makes all of their court dates.

People being held in jail because they await trial — and who are considered innocent because they have yet to be convicted — make up a large portion of the Clark County Detention Center’s population. The jail, which averages about 3,700 people a day, reported 2,779 defendants were staying there on a pre-trial basis in December 2019, as opposed to serving out a sentence after a conviction.

About 85 percent of people the jail was holding pre-trial were accused of a felony, with the rest facing lesser charges. But there were signs that inability to pay bail was holding back people accused of low-level offenses — in December 2019, the jail reported having 44 people in custody for more than seven days on bail amounts less than $2,500.

Activists attempted to change the law most recently in 2019, when they came together to research what other states were doing and introduced AB325 — a bill that would have factored in a defendant’s ability to pay when setting bail. The measure, sponsored by then-Assemblyman Ozzie Fumo (D-Las Vegas) and other Democrats, faced strident opposition before it was killed, and lawmakers instead advanced a resolution calling for an interim study on pre-trial issues

“We wrote that bill, and it was ... killed,” Turner said. “But then everything that the Nevada Supreme Court ruling in Valdez-Jimenez stated, was literally everything that was in that original bill, AB325.” 

In Valdez-Jimenez, justices ruled that Nevada bail law was unconstitutional because it did not require the court to consider terms of release that were less restrictive than incarceration before determining that cash bail should be imposed.

It also shifted the burden of proof. Prior to April 2020, the law required the defendant to make a “showing of good cause” about why they should be released. In the ruling, justices flipped that standard and ruled that it was the state’s responsibility to prove — through “clear and convincing evidence” — that bail was necessary to ensure a person’s appearance in court or public safety. 

Advocates support alternatives to cash as ways to ensure someone’s court appearance, including drug testing, GPS monitoring, court date reminder calls, substance abuse rehabilitation and check-ins.

If judges conclude bail is needed, they have to document “findings of fact” about why they came to that conclusion. Harris has framed the new paradigm as a win for civil libertarians.

“This issue is an opportunity for me to proudly wear the conservative label,” Harris, who chaired an interim committee on bail, said when she presented AB424 to fellow lawmakers. “I see this as a question of how long the government can hold you, deprive you of your liberty, prior to making any argument about why that liberty should be deprived.”

State Senator Dallas Harris on the fourth day of the 81st session of the Legislature in Carson City on Thursday, Feb. 4, 2021. (David Calvert/The Nevada Independent)

Overextending staff

The bill faced fierce pushback from prosecutors and rural judges, who argued that they could drive members of their small staffs to burnout if they needed to maintain availability through the weekends. Keith Lee, a lobbyist for the Nevada Judges of Limited Jurisdiction, also questioned bill proponents’ arguments that some defendants were waiting up to 12 days for a bail hearing.

“I have no way to know whether those are correct or not. I assume they're correct. I would respectfully suggest to you that they are one-offs, however,” he told lawmakers. “And I certainly want to dispel any implication that the reason there was so many hours taken is a result of the judge’s failure to act.”

Some bill opponents asked that the deadline for a hearing be extended to at least 48 judicial hours — meaning the clock would stop for nights and weekends — on the basis that a literal 48-hour timeline prevents even defense attorneys from preparing their case to get their client out. 

Noble, representing prosecutors, said lawmakers needed to consider all the support staff needed to prepare for the kind of robust hearing envisioned in the Valdez-Jimenez ruling. That includes investigative staff to pull criminal histories from an FBI database, staff to obtain information from law enforcement and staff in the pretrial services department to prepare risk assessments (an evaluation of how likely a defendant is to skip court or commit another crime).

“It is not as simple as just providing prosecutors to staff these hearings on the weekend,” she said. 

Judge Stephen Bishop of White Pine County called the 48-hour drop-dead timeline an “overcorrection.”

“It's going to be setting my court up for failure, my attorneys that for failure, and even the defendants up for failure,” he said during a hearing on the bill.

Some proponents said the cost concerns did not outweigh constitutional rights.

“What I'm hearing is that upholding our civil liberties is too expensive,” said Las Vegas resident Joseph Lankowski, who testified to lawmakers while he was out of jail on bail. “Where are we going to find the money to give our citizens their constitutional rights? And that's just not a viable excuse for me.”

In an interview, Harris acknowledged the new requirement could be a challenge, but she said she hoped it would push jurisdictions that have underfunded correctional facilities and services for people who cannot afford a lawyer to direct federal American Rescue Plan dollars to the cause.

“I think the courts are going to have to stretch a little bit, and get creative in order to be able to meet this new 48 hour requirement,” she said. “I’m hoping that the statutory requirement will give them a little bit of motivation to invest in that area.”

The bail window at the Las Vegas Detention Center as seen late Thursday night, July 29, 2021. (Daniel Clark/The Nevada Independent)

Work left undone

The Legislature’s moves this session fell short of doing away with cash bail. Proponents had hoped to get rid of the bail schedule entirely when they thought they might have the timeline reduced to 24 hours — that would make it unnecessary because incarcerated people would know they will see a judge within a day and could likely avoid missing much work because they are behind bars.

“We could eliminate bail, if we went to the 24 hours, and then it wouldn't be a wealth-based system,” said Clark County Chief Deputy Public Defender John Piro, who noted many people bail out within the first 12-24 hours. “But because we're not there, we're gonna have to keep some amount of bail so that people can bail out if they get ahead.”

The issue is also complicated because the Nevada Constitution explicitly says “all persons shall be bailable by sufficient sureties” except in certain murder cases. Eliminating cash bail would likely mean embarking on the multi-year process of removing it from the Constitution; Harris said she wasn’t aware that anyone is launching such a project.

The bill wasn’t the only one to come out of the work of a committee that spent the legislative interim exploring Nevada’s pre-trial release system. One bill that made it into law, AB440, requires officers to give people a citation instead of something stronger for their first nonviolent misdemeanor offense. 

The committee did also send a letter to court administrators, asking them to re-validate a pretrial risk assessment form. In interim meetings, several speakers argued the tool perpetuated racial biases because it predicts future conduct on statistics such as previous arrests among people of certain races.

Another bill, SB401 proposed collecting detailed information about the number, reason and bail amounts of people being held in jail before trial, and reporting that data to a statewide court administrator. It died over concerns about the costs of implementation.

If football is the analogy, Harris said, the Legislature didn’t quite score a touchdown on bail issues, but got within goal range. Keeping cash bail, but requiring a hearing within 48 hours, allows people who can get out earlier the option of doing so because they can pay, without letting those who can’t remain in jail for too long.

“Forty-eight hours I think is where we could kind of push our system right now to be a bit better,” Harris said.

Turner said she hasn’t seen much of a difference in bail practices in the year since the Supreme Court's ruling, based on calls she receives from people seeking help through the Freedom Fund, although she is noticing that bail amounts have been lower than they previously were. She’s also heard people say they aren’t getting the Valdez-Jimenez hearings they are entitled to — a trend that attorneys said they noticed in the wake of the decision.

She wants to make sure courts are complying with the ruling and stricter timelines. But she’s also got her eye on bigger goals than just successful implementation, including getting law students involved in helping craft future policies that take bold steps in changing the criminal justice system.

“I think I'm reimagining what pretrial detention is, and what it actually means for public safety,” Turner said. “Figuring out how we can write new policy and write and create new systems that reflect the world that we all want to live in.”

Lawmakers considering bill to ensure rural counties appoint public defenders independently from the judiciary

Lawmakers are considering a bill meant to ensure rural counties comply with a 2008 state Supreme Court order requiring every judicial district in the state to develop a plan for appointing indigent defense services independently from the judiciary. 

Across the state, there have long been issues with the legal defense provided to indigent defendants — people with low incomes who are unable to obtain qualified, competent legal counsel on their own without substantial hardship. The state has been sued in the past over its sparse public defender system in its rural counties and has dealt with disparities in indigent defense from county to county.

But Nevada has also dealt with issues with public defenders appointed by the judiciary. John Piro, a public defender in Clark County, explained that before the 2008 order, there were instances in which “baby lawyers” were assigned to serious cases of murder and sexual assault, and at other times, some attorneys were more interested in “keeping the judge happy than providing zealous representation,” both leading to ineffective representation of indigent defendants.

Following the Supreme Court order, both Clark County and Washoe County developed plans to create that independence by excluding the trial judge or justice of the peace from the selection of counsel and approval of attorney fees. However, those policies have not been adopted statewide.

Marcie Ryba, the executive director of the Department of Indigent Defense Services (established in 2019) and the presenter of the bill, AB480, said that the measure would be important for enforcing the Supreme Court order as rural counties prepare to submit plans for handling indigent defense services this September.

“Each plan, with the assistance of the Department of Indigent Defense Services, will set forth the county's process for selection of counsel, how they approve compensation of indigent defense providers and how they pay and improve case related expenses,” Ryba said during a hearing of the bill on Tuesday.

The bill builds off of a $2.4 million appropriation over the biennium for improving indigent defense services in certain rural counties. Those funds will be used by the department to address the state Supreme Court’s decision in Davis v. Nevada (2020), which stipulated that the state needed to eliminate economic disincentives for public defenders and establish minimum standards for indigent defense services.

The measure also aims to reduce the disincentives by eliminating caps on fees for appointed indigent defense counsel. Fee caps can create an economic disincentive, by leading to lawyers taking on excessive caseloads or resulting in under-researched cases by inexperienced counsel.

Members of the Clark County Defenders Union testified in support of the bill on Tuesday, after an amendment from the union meant to preserve pay parity with District Attorneys had been added. They argued that the measure would help ensure there are effective and zealous public defenders in the state.

“As of today, I have 169 open cases and 1,297 closed cases,” said Kara Simmons, a Clark County deputy public defender of three and a half years. “Our dedication to our clients is what brings us into this office outside normal working hours, what drives us to stay late into the night and come in on the weekends. We need to make sure we keep quality attorneys here that are dedicated to this level of service.”

The bill was approved by the Assembly on a 36-5 vote on Friday, and now heads to the Senate.

Editor’s Note: This story first appeared in Behind the Bar, The Nevada Independent’s newsletter dedicated to comprehensive coverage of the 2021 Legislature. Sign up for the newsletter here.

Lawmakers and advocates seek to keep youth offenders from adult criminal system through juvenile justice reforms

A wide variety of state and federal laws and policies treat minors differently from adults.

People must be 21 to buy alcohol. The youngest someone can be to enlist in the military is 17. In Nevada, a person must be 16 to apply for a full driver’s license. 

The differences have been perpetuated by case law, as well. In Roper v. Simmons (2005), the U.S. Supreme Court ruled the death penalty unconstitutional for minors, and in Graham v. Florida (2010), the court held that life-without-parole for non-homicide crimes is an unconstitutional punishment for minors.

Sen. James Ohrenschall (D-Las Vegas), a juvenile public defender in Clark County, notes that scientific evidence about child brain development substantiates these differences in treatment.

“I think there's more realization now that children aren't able to make decisions the way adults do,” Ohrenschall said. “And trying to hold children accountable to the same standards we hold adults is not fair.”

Lawmakers this session are seeking to further separate the juvenile justice system from the adult criminal justice system at nearly every level, with legislation aimed at reducing referrals into the system, promoting rehabilitation programs and housing young offenders separately.

“I think the big effort on our part was to try to either keep kids from getting in the system if we can,” Ohrenschall said. “And if they are in the system, to try to see if there can be programs that can keep them closer to home, closer to their community.”

The efforts of Ohrenschall, who chaired the Legislative Committee on Child Welfare and Juvenile Justice during the interim, and others have made the 2021 legislative session a particularly active one for the subject. More juvenile justice bills were introduced this year than in each of the 2019 and 2017 sessions.

Though the 2017 session featured sweeping legislation such as a bill that established the Juvenile Justice Oversight Commission and another that enacted the Juvenile Justice Bill of Rights, Holly Welborn, policy director for the ACLU of Nevada, said juvenile justice issues are often overlooked — adult criminal justice bills on the death penalty and police reform have been at the forefront of the Legislature this session.

“The issue of juvenile justice really gets pushed down in the broader conversation … amongst the very controversial adult criminal justice reform topics,” Welborn said.

Many of this year’s juvenile-focused bills have received broad support. Bills aimed at easing penalties for youth cannabis or alcohol possession, expanding record sealing for youth offenders and creating a new Miranda warning for minors all passed unanimously out of the Assembly.

“I think that a lot of my colleagues are concerned about the school to prison pipeline,” Ohrenschall said. “They want to try to see reform and see as much done as possible that can divert children from getting caught up in the system.”

Below is a roundup of the ongoing efforts to reform the juvenile justice system this session.

State Senator James Ohrenschall arrives on the fourth day of the 81st session of the Legislature in Carson City on Thursday, Feb. 4, 2021. (David Calvert/The Nevada Independent)

Reducing points of contact and racial disparities

Nevada’s Juvenile Justice Oversight Commission — a body of 20-plus juvenile justice experts and stakeholders — has found that “African American youth are overrepresented at almost every contact point” in the juvenile justice system.

The commission’s racial and ethnic disparities report for the 2020 federal fiscal year, which ended September 30, 2020, found that while less than 15 percent of the state’s youth population was African American that year, the group made up more than 32 percent of the youth arrests. As the commission and the Division of Child and Family Services actively engage in efforts to reduce those disparities, lawmakers have introduced multiple bills aimed at helping children of color.

AB158, a bill from Assemblywoman Daniele Monroe-Moreno (D-North Las Vegas), would significantly lighten penalties for minors who purchase or possess alcohol or cannabis, including prohibiting jail time and fees for first and second offenses.

In an interview with The Nevada Independent, Monroe-Moreno said she brought the bill forward on behalf of A’Esha Goins, an advocate in the cannabis industry and the mother of a young Black man, who “had seen how other young kids of color have been charged with possession of marijuana and or alcohol.”

Monroe-Moreno discussed the importance of being constructive with children who make mistakes, rather than strictly punitive, and recalled her own experiences growing up.

“In our household growing up, you got three chances,” she said. “If you were stupid enough to do something that third time, then you really got in trouble, but the first time was my mom explaining why this behavior was wrong.”

Assemblywoman Danielle Monroe-Moreno on Tuesday, Aug. 4, 2020 during the fifth day of the 32nd Special Session of the Legislature in Carson City. (David Calvert/The Nevada Independent)

For people under the age of 21 found guilty of a misdemeanor for possessing, consuming or purchasing alcohol or possessing less than one ounce of cannabis, the bill would replace misdemeanor penalties of up to six months jail time and up to a $1,000 fine with penalties of up to 24 hours of community service and a requirement to attend a meeting of a panel of victims injured by a person who was driving under the influence of alcohol or a controlled substance.

The bill would also revise the penalties for a second violation to require up to 100 hours of counseling or participation in an educational program, support group or treatment program.

The measure is intended to reduce the number of minors who enter into the state’s criminal justice system.

In 2019, more than 8,000 youth were arrested in Nevada, with possession of marijuana being the second most common charge. In 2020, the number of youth arrests declined by more than 2,000, and possession, sale, or use of an illegal drug dropped to the fourth most common charge.

“I do think this bill will help a lot of kids not get caught up in the system,” Ohrenschall said during the hearing. “And possibly just get the guidance they need without having to either be in court or in a detention facility.”

AB158 STATUS: The bill passed unanimously out of the Assembly on April 20 and awaits a vote on the Senate floor.

***

In the oversight commission’s racial disparities report, the group highlighted specific types of race-focused training for officers and dispatchers as a way to reduce disparities at the front end of the justice system. Though the report found that “police officers statewide generally receive training in racial profiling and implicit bias,” a bill this session is aimed at expanding that training.

SB108, created by the Nevada Youth Legislature, a program that allows a group of high school students to present one bill to the Legislature each session, would require all employees who interact with children in the juvenile justice system in the state to complete implicit bias and cultural competency training once every two years.

“It is urgent more so now than ever to address the inequality faced by minority youth within the Nevada juvenile justice system,” youth legislator Julianna Melendez said during an April 23 hearing. “I personally have friends who have been targeted by school police and treated differently compared to our white counterparts, specifically because of the color of their skin.”

Another youth legislator, Melekte Hailemeskel, shared how her worldview changed following the death of Trayvon Martin.

“From that day on, I began to see the world for what it truly was. My heart filled with fear every time my father stepped outside the house. I transitioned to fearing the police rather than feeling protected by them,” Hailemeskel said. “This bill gives the youth the opportunity to live life without fear of being victimized by implicit bias.”

The original version of the bill from the Youth Legislature would have mandated the training for all people employed in the criminal justice system; however, the amended version applies only to those employed in the juvenile justice system, such as juvenile public defenders, youth parole officers and school police officers.

The training would include explanations of the negative effects of implicit bias and the importance of understanding implicit bias, as well as cultural competency information focused on sexual orientation, gender, race, ethnicity and religion.

Kathryn Roose, a deputy administrator at the Division of Child and Family Services, said that the bill is aligned with the division’s goal of addressing racial disparities and noted that the agency would already have a process in place for implementing the required training.

SB108 STATUS: The bill passed 20-1 out of the Senate in mid-April and faces a possible vote in the Assembly.

New Miranda warning for minors

As other ongoing juvenile justice efforts attempt to limit entries into the system, Assemblyman Edgar Flores (D-Las Vegas) has introduced a bill that he hopes will help youth offenders better understand their rights when they are facing arrest.

AB132 would establish a plain-language Miranda warning system for minors. In the expanded list of disclosures, a police officer would have to say the following to a minor, before starting an interrogation:

  • You have the right to remain silent, which means you do not have to say anything to me unless you want to. It is your choice.
  • If you choose to talk to me, whatever you tell me I can tell a judge in court.
  • You have the right to have your parent with you while you talk to me.
  • You have the right to have a lawyer with you while you talk to me. If your family cannot pay for a lawyer, you will get a free lawyer. That lawyer is your lawyer and can help you if you decide that you want to talk to me.
  • These are your rights. Do you understand what I have told you?
  • Do you want to talk to me?
A Clark County School District Police officer monitors Western High School students after class on Friday, Oct. 19, 2018. (Jeff Scheid/The Nevada Independent)

The original Miranda warning was established through the U.S. Supreme Court case Miranda v. Arizona (1966). The case held that police cannot question defendants in custody until they are made aware of their rights. Once those rights have been explained, defendants can voluntarily, knowingly and intelligently waive their rights and agree to answer questions or make a statement.

During a hearing of the bill in early May, Flores said the bill came from the idea that children typically do not knowingly and intelligently waive their rights because they do not have a full understanding of what rights they are entitled to.

Flores explained that he tested the new warning language used in the bill by giving it to teachers at Manuel J. Cortez Elementary School and the K-12 school, West Preparatory Academy, both located in Las Vegas, and having those teachers read both the current and proposed language to children.  

“This language that is in Assembly Bill 132 seemed to really go further into the understanding and comprehension of a child,” Flores said during the hearing.

Flores also said that the case law established by Miranda v. Arizona only set the bare minimum and that the state can go beyond that minimum by creating a new set of warnings that is easier for children to understand.

John Piro, a public defender in Clark County, explained that many police officers carry cards that have the Miranda warning language on them, so officers would not need to memorize all of the revised wording.

Piro also said that even if officers are unsure whether the person being taken into custody is an adult or minor, they could recite the new Miranda warning for minors because the revised language fulfills the legal requirements for all people.

AB132 STATUS: The bill passed unanimously out of the Assembly on April 19 and awaits a possible vote on the Senate floor.

Limiting direct file

Juvenile justice advocates have long sought to keep youth offenders within the juvenile system and out of the adult criminal justice system — for certain crimes, a prosecutor may override the jurisdiction of a juvenile court by filing charges against a minor in an adult criminal court in a process known as “direct file.”

AB230, sponsored by Assemblyman C.H. Miller (D-North Las Vegas), would prohibit the mandatory direct file process for children — aged 16 and up at the time of the offense —  who were charged with sexual assault involving violence or an offense or attempted offense involving the use or threatened use of a firearm.

During a hearing of the bill in April, Miller called the measure “another big step forward in giving some of our most troubled youth a chance to live a productive life.”

The bill would still permit jurisdiction of the adult court for cases that do not involve “delinquent” acts, such as murder or attempted murder (if the offender was at least 16 years old), some felonies and any offense committed after the person had been convicted of a previous criminal offense.

Miller said that direct file laws were originally created as a response to narratives about heightened youth crime in the 1990s, and he called on other lawmakers to “right the wrongs” created by those laws.

“Much of this legislation stemmed from the devastating narrative that a monstrous wave of mythical creatures known as ‘super predators’ — impulsive, remorseless, elementary school youngsters who packed guns instead of lunches would take over,” he said at a March hearing. “Today, we all know that narrative wasn't true. And it led to more problems than it could have ever solved.”

Kelly Jones, a public defender in Clark County, said that youth sent to adult facilities are more likely to be victims of sexual abuse and to commit suicide and have higher rates of recidivism.

Jagada Chambers, a rights restoration coordinator with a civic engagement advocacy group called Silver State Voices, also pointed out the disparate impact of direct file. Chambers said that of the 219 youths directly filed to the adult system in Clark County since 2013, roughly 200 were children of color.

However, the bill still faces an uphill battle because of its associated costs. A fiscal note from the Department of Health and Human Services states that more resources would be needed to house the increased number of minors that would no longer go to the Department of Corrections. The corrections department estimates the bill would save the agency close to $300,000 over the upcoming biennium.

The estimated cost to Clark County, the only county in the state to have direct files recorded in the past five years, though, would be more than $6.5 million over the next two years — that cost would come from a combination of increased staffing, mental health resources, food and nursing.

The bill also would require the Legislature’s interim juvenile justice committee to conduct a study on the need for and cost of housing young offenders awaiting certification for criminal proceedings as an adult. Miller said the study is necessary because the infrastructure and resources necessary to completely eliminate direct files are not currently available in the state.

AB230 STATUS: Though the measure is exempt from legislative deadlines because of its fiscal impact, the bill has not been discussed since its April 21 hearing. There has been broad support for the measure, however, as 30 lawmakers have signed onto the bill as primary sponsors or co-sponsors.

Jurisdiction over juvenile cases

A bill introduced on behalf of the Nevada Supreme Court, SB7, would also contribute to transferring greater jurisdiction to the state’s juvenile courts.

The bill would ensure that a juvenile court has exclusive jurisdiction in cases in which it is alleged that a minor who is the adverse party to an order for protection has violated a condition of the order. A protective order is typically issued to protect a certain person or entity from harassment, abuse or sexual assault.

The juvenile court would only maintain jurisdiction for violations that involve delinquent acts, meaning some acts, such as murder, would not fall under the jurisdiction of the juvenile court.

During the initial hearing of the bill in early February, John McCormick, an administrator for the state’s Supreme Court, said the legislation is meant to establish statutory clarity where none exists and create a uniform system for jurisdiction across the state.

SB7 STATUS: The bill passed unanimously out of the Senate in mid-April and next awaits a vote on the Assembly floor.

Juvenile Court Hearing Master Soonhee "Sunny" Bailey on the bench during autism specialty court on Thursday, Feb. 14, 2019. (Jeff Scheid/The Nevada Independent)

Changes to juvenile housing

Youth offenders certified as adults are housed by the Department of Corrections at Lovelock Correctional Center, a policy that has long been a concern for youth justice advocates, such as Welborn.

“My very first day with the ACLU of Nevada, the first call that I took was a call with a national organization to talk about the boys who are housed in Lovelock and the conditions that they're living in, the inhumane conditions that they're living in, how inappropriate those conditions are for youth,” Welborn said.

Two different Department of Justice investigations announced this year have highlighted issues with the state’s methods of housing youth offenders. One investigation is examining whether staff at two state correctional facilities — Summit View Youth Center and Nevada Youth Training Center — use pepper spray in a manner that violates youth’s rights under the Constitution. The other investigation is examining whether the state unnecessarily institutionalized children with behavioral health conditions in violation of the Americans with Disabilities Act.

As youth advocates and lawmakers seek to improve housing conditions for youth offenders, several bills introduced on behalf of the juvenile justice committee this session would make significant changes to housing policies.

One bill, SB365, would require the state to develop a pilot program for housing youth offenders convicted as adults in a child and family services division facility, rather than in an adult correctional facility. 

Welborn said that legislation and other bills that address youth housing are important because of the differences between minors and adults and the time it takes for the youth brain to fully mature.

“Most of these young people will be released at some point in time,” she said. “So ensuring that they have the adequate therapeutic services, educational opportunities, exercise, etc. for their full healthy development, in order to ensure that they will be successful when they leave. And that has to be the right types of interventions and treatment that is age appropriate.”

In past years, there have been roughly 20 youth offenders, at any given time, held at the Lovelock Correctional Center because they were certified as adults in the criminal justice system. The pilot program would move eight of those offenders to the Summit View Youth Center, operated by the child and family services division.

The division estimates the financial impact of the pilot program to be more than $2.3 million over the 2021-23 biennium, with costs based on the projected need to add more beds and staff.

SB365 STATUS: With the costs attached to the bill, the measure next faces a hearing in the Senate Finance Committee; however, no action has been taken since the bill  was passed by the Senate Judiciary Committee on April 8. There are no future hearings scheduled for the legislation.

Two other bills would work collectively with SB365 to address housing for youthful offenders.

SB357, a bill from the juvenile justice committee, would require the Department of Corrections to track expenses related to housing youth offenders, meaning the department would need to report all costs associated with the minors living at Lovelock Correctional Center.

SB356, another bill from the interim committee, would require the oversight commission to study the feasibility of housing youthful offenders, who are between 18 and 24 years old and who will be released from prison before reaching 25 years of age, separately from offenders who will continue to be incarcerated past age 24.

“It's also tough to go from taking a kid from the juvenile system and then shocking them into this very hardened adult system, when there's really something in between that works better for those young offenders,” Welborn said. “So that's why all of these bills are a part of a lot larger, broader conversation.”

SB357 STATUS: The bill passed 20-0 out of the Senate on April 13 and faces a potential vote on the Assembly floor.

SB356 STATUS: Though the bill is exempt from legislative deadlines because of its small financial impact, the measure has not been picked up by the Senate Finance Committee since being passed by the Judiciary committee on April 8.

Treating youth found incompetent

One bill from the juvenile justice committee, SB366, would address housing for a narrow portion of youth offenders: those ruled incompetent.

Roose, from the child and family services division, explained that the state does not have in place a facility to help restore children to competency. In a note attached to the bill, Ross Armstrong, administrator of the division, wrote that the agency “does not have the qualified staffing to serve the population with developmental disabilities” — children ruled incompetent typically suffer from an untreated mental illness or developmental disability.

“This is a really complex bill on a complex service and system that would need to be developed in collaboration with sister agencies,” Roose said. “It's just a system that doesn't really exist in Nevada. But, again, we have the opportunity to study and maybe build a solution.”

The actual impact of the bill remains unclear because of differences between the latest version of the bill and comments from the division. However, in line with Roose’s comments, a fiscal note from the division indicates the bill would fund a study to determine the resources needed for rehabilitating incompetent youth offenders.

SB366 STATUS: Though a fiscal exemption has kept the bill alive, the measure has not been acted on since passing out of the Senate Judiciary Committee in early April.

Diverting more youth

One other bill from the juvenile justice committee in line with the efforts to improve housing, SB385, is meant to keep more youth offenders out of the deep end of the juvenile justice system and out of state-controlled correctional facilities.

Though the measure does not seek to directly divert more youth offenders away from state facilities, it would require that the division conduct a study during the interim on which activities and programs help reduce the number of minors committed to state facilities.

“The spirit of this bill is to take savings in our DCFS facility budget, through savings that we achieve through reducing the number of youth coming to us,” Roose said. “And take those funds and divert them to the counties to build up their service array, with the theory being that the more resources that the counties have to provide the services to youth that they need, the less likely they will ever come into a DCFS facility.”

SB385 STATUS: The bill was approved by the Senate Finance Committee on May 12 and next awaits a vote on the Senate floor.

Sealing records

As lawmakers continue to address the “school-to-prison pipeline,” a bill from Assemblywoman Lisa Krasner (R-Reno) would help some juvenile offenders avoid the repercussions of having a criminal record when they become an adult.

The bill, AB251, would establish provisions for a juvenile’s record to be automatically sealed at age 18 and allow those who are 18 or older to petition the court for the expungement or destruction of their juvenile record for any infraction, arrest or crime that was committed as a child that was equal to a misdemeanor or less.

“Young offenders may face serious consequences and obstacles as a result of their juvenile record,” Krasner said during a hearing of the bill on May 10. “A juvenile adjudication can prevent a young person from receiving financial aid for higher education, admissions to colleges, getting a job, joining the military or being admitted into certain licensed professions.”

Krasner called the measure a chance to provide young people with “a fresh start and a second chance,” pointing out that minors are unable to make logical, informed decisions in stressful situations because their brains are not yet fully developed.

AB251 STATUS: The bill passed unanimously out of the Assembly on April 20 and awaits a vote in the Senate.

Republican Assemblywoman Lisa Krasner holds a press conference on a human trafficking bill on March 2, 2021 at the Legislature in Carson City. (Michelle Rindels/The Nevada Independent)

Structural changes within the juvenile justice system

Though much of the juvenile justice legislation this session focuses on youth offenders themselves, lawmakers also have introduced a few bills that affect the greater justice system and the operations of the child and family services division.

AB448, a bill from the Governor’s Finance Office, would designate criminal investigators employed by the division as category II peace officers. Those investigators were not previously categorized as peace officers in statute. Other officers designated under category II include other criminal investigators, youth parole officers and school police officers.

AB448 STATUS: The measure is exempt from legislative deadlines; however, it has not yet received a formal hearing in any Assembly committee.

***

Another pair of bills would affect workers within the juvenile justice system. SB21, a bill introduced on behalf of the division, would create a uniform process for background checks for employee hiring across different juvenile agencies and facilities in the state. The other bill, SB317, introduced by Ohrenschall, would allow juvenile justice employees to receive back pay for unpaid leave administered during an investigation, if the employee is found not guilty or has their charges dismissed.

SB21 STATUS: The bill passed unanimously out of the Senate on April 20 and next faces a potential vote on the Assembly floor.

SB317 STATUS: After passing out of the Senate on 12-9 vote in mid-April, the bill awaits a vote in the full Assembly.

***

SB132, sponsored by Sen. Keith Pickard (R-Henderson), would appropriate $10 million from the General Fund to the Eighth Judicial District in Clark County for support services, including educational support services at The Harbor, a juvenile justice assessment center.

SB132 STATUS: The bill is exempt from legislative deadlines but has not yet received a hearing.

Future justice efforts

Four years ago, lawmakers passed AB472, which established the Juvenile Justice Oversight Commission (JJOC). This session, lawmakers are considering a bill that would, as Roose described the measure, “put a spotlight on the great work of the JJOC.”

SB398 would require the commission to submit a report to the Legislature with an update on the progress of its 5-year strategic plan. The report would include recommendations for any legislation related to both the plan and disparities in the juvenile justice system, such as racial disparities.

SB398 STATUS: The bill passed out of the Senate on a 20-0 vote in mid-April and next faces a possible vote in the Assembly.

While SB398 is meant to bring forward more legislation aimed at improving the juvenile justice system, another bill discussed this session could hamper reform efforts, according to Welborn.

AB443, an Assembly Legislative Operations and Elections Committee bill, would overhaul the structure of interim legislative committees. The bill would, in part, eliminate the interim juvenile justice committee and instead establish a joint interim judiciary committee.

Welborn expressed concern that the initial version of the bill could draw attention away from the work being done to help young people. However, an amended version of the measure would require the interim judiciary committee to allocate five bill draft requests specifically for juvenile justice issues. 

“I fear that we lose that momentum, if we abolish that interim committee, or at minimum, don’t establish … some sort of subcommittee to handle juvenile justice issues,” she said. “If we don't, then they're not going to get the attention they need.”

AB443 STATUS: The measure is exempt from legislative deadlines and was last passed out of the Assembly Legislative Operations and Elections Committee on May 13.

As Welborn, among other advocates, fights to garner greater attention for youth justice issues, she noted that reform can take lots of time and work, and she recalls a quote from Ohrenschall, another youth advocate.

“We come to the Legislature wanting revolution, but what we get is evolution,” she said.

Behind the Bar: Tax credits for charter schools, discrimination in jury selection, adding checks to HOA foreclosures

Behind the Bar is The Nevada Independent’s newsletter devoted to comprehensive and accessible coverage of the 2021 Legislature. 

In this edition: Adding additional checks before an HOA can foreclose on a home, expanding jury discrimination rules, and tax credits for charter school facilities and construction. Plus, another Carson City Restaurant Spotlight.

Check this link to manage your newsletter subscriptions. This newsletter is published on Mondays and Thursdays.

I want to hear from you! Questions, comments, observations, jokes, what you think we should be covering or paying attention to. Email me at rsnyder@thenvindy.com.


On Monday, The Nevada Independent’s legislative coverage team hit an important milestone.

We published the 14th and likely final installment of our Freshman Orientation series this session, the final edition focused on freshman Democrat David Orentlicher.

We’ve done some form of a freshman profile since the Nevada Independent launched in 2017, and have rarely lacked subjects — term limits on the Legislature ensures there are anywhere from one to two dozen new faces every session.

Heading into the 2021 Legislature, we wanted to put extra effort into this series. In the past, they’ve usually just included a quick biographical rundown and answers to a questionnaire focused on major policy areas.

Knowing that at least the start of the session would be closed to the public — meaning that people have even less access to their representatives than normal —  we wanted to put more work into describing and profiling the freshman lawmakers.

Yes, many of these individuals are (at least for their first session) legislative backbenchers — few if any will end up working on major pieces of legislation late into session, or stay in the headlines.

But especially as the press corps covering the Legislature has continued to thin out, it’s an important public service to profile these elected officials, many of whom will likely go on to hold major roles or helm major policy pushes in future sessions. 

I know that these aren’t the sexiest or “scoopiest” stories that we’ve ever published, but I think there is real value in providing regular high-quality, in-depth reporting on the occasionally mundane topics. 

There’s a line from a 2008 Washington Post piece authored by The Wire creator David Simon that’s stuck with me for a long time and is applicable here — that even the best newspapers and news organizations have a tendency to focus not on the “form of consistent and sophisticated coverage of issues, but of special projects and five-part series on selected topics — a distraction designed not to convince readers that a newspaper aggressively brings the world to them each day, but to convince a prize committee that someone, somewhere, deserves a plaque.”

None of these Freshman Orientation articles are going to win a Pulitzer Prize. But there’s value in this journalism and in telling the stories of these people making major decisions for the state. I hope you take time to read a few of them:

Assembly: David Orentlicher, Clara “Claire” Thomas, Elaine Marzola, Cameron “C.H.” Miller, Andy Matthews, Heidi Kasama, Tracy Brown-May, Venicia Considine, Cecelia González, Shondra Summers-Armstrong, Natha Anderson.

Senate: Roberta Lange, Fabian Doñate, Carrie Buck.

— Riley Snyder


Bill seeks to add checks to HOA foreclosure process

Under Nevada law, if a member of a Homeowners Associations (HOA) fails to pay off debt or dues, the association can foreclose on the property without going through the court system.

Sen. Pat Spearman (D-Las Vegas) is looking to change that with SB144.

The HOA foreclosure process disproportionately affects communities of color, Spearman said during a bill hearing Friday, adding that communities of color experience higher HOA foreclosure rates than other demographics.

"The ability to buy a home has been and is the foundation on which we build personal wealth in this country, indeed there is a direct correlation in the widening wealth gap and the lack of home ownership in BIPOC communities," Spearman said.

The bill would require an HOA go through the judicial process when pursuing a foreclosure, adding a layer of due process. It also would require HOAs to submit a report documenting the demographics of people whose past-due obligations are sent to a collection agency, and create a website allowing homeowners to check their accounts and receive immediate notices.

Spearman described the bill as a vital tool for gathering data on HOA practices and keeping Nevadans housed during a pandemic that has dried up income sources and threatened the state's most vulnerable populations.

"This bill does not remove the HOA's ability to enforce the non-payment of dues or assessments; it simply changes the process," Spearman added.

Supporters of the bill praised it as a necessary step to addressing housing insecurity in Nevada. A letter from a Culinary Union member read during public comment stated that a woman owes her HOA $900 and does not know where she will go if her home is foreclosed.

"I'm afraid that they will come after me at any time," the letter-writer said, adding that the bill will help her and others in a similar situation.

Critics questioned increased costs that might stem from the judicial process. Cameron Clark, president of Nevada Association Services, characterized the legislation as "a punitive measure on the homeowners that are paying their bills."

Spearman pushed back against the criticism, saying that homeowners would not bear the brunt of additional costs.

"I really want us to look at what Senate Bill 144 does. It helps people stay in their home. And it helps to give them an extra layer of protection for due process. That's all it does," Spearman said. "I have no idea why the judicial process has worked folks up so much."

Tabitha Mueller


Expanding jury discrimination rules to include sexual orientation, gender identity

In 1987, the U.S. Supreme Court handed down a landmark 7-2 decision in the case of Batson v. Kentucky, finding that prosecutors could not use peremptory challenges in criminal trials to remove potential jurors solely based on their race without a stated rationale. 

Nevada could go beyond that ruling under Sen. Dallas Harris’s SB233, expanding what’s known as a Batson challenge — a motion objecting to opposing counsel’s use of peremptory challenges to strike jurors based on race — to also include sexual orientation, gender identity or expression, physical disability or other inherent factors.

“These protections are not a new idea,” she said on Tuesday, during a bill hearing in the Senate Judiciary Committee. “They just need to be codified to be preserved.”

The bill itself is straightforward — adding those specific protections against juror discrimination, while also noting that the provisions don’t infringe upon any statutory or constitutional rights of accused persons, nor creating any right of a potential juror to serve on a potential jury (or to sue, if that potential juror is strange enough to want to serve on a jury). Harris said 11 other states have adopted similar protections for sexual orientation, and eight had approved similar language on gender expression.

Asked by Sen. Ira Hansen (R-Sparks) if there was an issue with the Clark County district attorney’s office regarding discrimination in jury selection, Harris said she wasn’t aware of any “flurry of prosecutors striking people unfairly.”

But advocates said the measure would beef up existing law prohibiting discrimination in jury selection, marking a needed step beyond existing federal protections (under Batson v. Kentucky) and because of issues in past cases with prosecutors in Clark County.

“Neither Senator (Melanie) Schieble nor Senator (Nicole) Cannizzaro is guilty of this, but the Clark County district attorney's office as a whole has a long and tortured history of violating Batson and getting serious cases reversed because of their problems with that issue,” Clark County Public Defender’s office lobbyist John Piro said, referencing two legislators employed by the district attorney’s office.

Harris said SB223 wasn’t the end point of discussions on diversity on juries — she said she hopes to bring legislation next session (or, if she can “pull off a miracle,” this session) to address the front end issue of ensuring jury pools represented an adequate cross-section of society, before any selections are made or peremptory challenges are filed.

“I could not quite get there, but you are correct,” she said in response to a question by Scheible. “We need to worry about both sides of the issue. This bill only addresses the latter.”

— Riley Snyder

Tax credits for charter school buildings and facilities

State Sen. Carrie Buck (R-Las Vegas) participated in an education choice rally roughly five years ago as a newly minted charter school principal. 

Now, as a first-year state senator, Buck said she has come “full circle” by introducing legislation that would help solve one of the problems she lamented during that rally years ago — the lack of facility funding for charter schools.

SB333 would provide up to $10 million in annual tax credits to businesses that donate money to help Title I charter schools that serve students from low-income households. The donated money would be distributed to eligible schools on a per-pupil basis to help with facility costs. Although charter schools are technically public schools, they do not receive funding generated by local property taxes for facility needs or capital projects. That leaves them dipping into their operational budgets to cover those expenses.

It has long been a point of contention in the charter community given that traditional public school districts receive about $1,200 more per student for facility needs.

Buck framed the proposed legislation as the key to incentivizing high-quality charter schools to open in neighborhoods with struggling traditional public schools. Finding available and affordable buildings or land can be difficult in dense urban areas, she said, which has been a barrier in expanding charter school access to the state’s most vulnerable students.

“I’m hoping that we can prove that this would make a difference and then maybe inevitably grow the fund in my next term,” Buck said. 

If this bill passes and becomes law, the businesses that donate money would receive a credit against the modified business tax (assessed on payroll) or the general tax on insurance premiums. The credit amount could not exceed that of the donation itself.

Renee Fairless, principal of Mater Academy East Las Vegas, said the facility funding would do wonders for her school, which is temporarily operating out of a site formerly occupied by Mountain View Christian Schools. A new building for Mater Academy East Las Vegas is under construction and will cost $2.3 million per year in payments, she said. But Fairless recently learned it will cost $46,000 to fix the air conditioners in portable classrooms they’re currently using. 

She said it’s an example of how facility costs balloon quickly for charter schools, especially ones in high-need neighborhoods where it’s even more difficult to find space or land. Mater Academy East Las Vegas is sponsored by the Nevada State Public Charter School Authority.

“I think all charter schools — all state schools — should get funding. I don’t think you can put the word ‘state’ in front of what I’m doing and then not provide dollars to open a facility,” she said. “But do I think if you start with Title I schools that that’s a good start? I definitely think it is. I think a lot of people can get behind that because they know we need these resources.”

No bill hearings have been scheduled yet. 

— Jackie Valley

Carson City Restaurant Spotlight — Mangia Tutto

A few months back, I had some friends visiting from Chicago, and figured that my default Little Caesars wasn’t going to cut it for people with easy access to the best pizzas in the world.

But I figured Mangia Tutto, located just to the north of the Capitol and with a name that means “eat everything” in Italian, could impress even a discriminating pizza snob. I was right.

Last week, I went back and splurged on one of the restaurant’s hearty deep dish pizzas. The “Kiss Me” pizza featured pepperoni, Italian sausage and hot giardiniera— pickled peppers and other vegetables — for a great kick even before I doused it with red pepper flakes.

But beyond the showstopper pizzas is the real star — the Mangia Tutto salad. With chicken, bacon, gorgonzola, tomato and — surprise! — pasta, it’s like a whole summer barbecue in a bowl. I don’t say this often, but you will not forget this salad.

An extra large pizza (big enough for six servings) and a large salad (big enough for two large portions) will set you back $67 with tip, but you’ll be glad you did it. Place your order at (775) 461-3353 — allow at least 45 minutes or so for that huge pizza to cook through — and then pick it up at 200 N Stewart St. Open until 8 p.m.

Have a restaurant suggestion for the Spotlight? Tell me at michelle@thenvindy.com. FYI: We’re not accepting free food in order to preserve the integrity of the reviews.

What we’re reading

Nevada’s female-majority Legislature could pass a bill this session that allows women to bypass a doctor’s visit and receive birth control through a pharmacy, Tabitha Mueller reports.

Michelle Rindels with major takeaways from the latest Department of Employment, Training and Rehabilitation budget hearing.

The bill upping penalties for litigation brought over noncompliance with public record requests got expected pushback from local governments, Sean Golonka reports.

Sean also reported a bill that would modernize state laws related to HIV.

A must-read roundup of environment and mining bills in Daniel Rothberg’s weekly newsletter.

On the ACA’s 11th anniversary, Health and Human Services Secretary Xavier Becerra made some news in announcing an extended open enrollment period for health insurance exchanges during a visit to Carson City, Jazmin Orozco Rodriguez reports.

Not sure any parents will willingly go back to distance learning once schools resume in-person instruction, but just in case, the Department of Education and Sen. Mo Denis (D-Las Vegas) have a bill for that.

Our roundup of “deadline day” bill introductions (bill introduction deadline rules were all suspended, continual proof that we’re in the Whose Line is it Anyway-themed session).

Totally normal and cool to make a small, retroactive $41,000 loan to your political action committee that you’ve used to pay your daughter’s events company and spend more than six figures on restaurants, travel and your own business for “constituent outreach.” (Las Vegas Review-Journal)

The indomitable Ray Hagar reports on Nevada Newsmakers interviews with Assemblywoman Jill Tolles (R-Reno) and Sen. Chris Brooks (D-Las Vegas).

Slavery is still in the Nevada Constitution. Howard Watts (D-Las Vegas) wants to take it out (Nevada Current).

The Reno City Council’s plan to end gun violence by not immediately banking with JP Morgan Chase (Reno Gazette-Journal).

UPCOMING DEADLINES

Start closing budgets: 5 (Tuesday, March 30, 2021)

First Committee Passage: 15 (Friday, April 9, 2021)

Days Until Sine Die: 70 (May 31, 2021)

Proponents of decriminalizing traffic tickets in Nevada hope that fifth try is the charm

A police officer stands at the scene of a traffic accident.

For at least the fifth session in a row, Nevada lawmakers are looking to decriminalize traffic tickets — an action proponents say would move the state away from the vestiges of a Victorian-era debtor’s prison but that local governments continue to oppose because of how it might affect their budgets.

Minor traffic offenses are considered criminal misdemeanors that — if unpaid — escalate to warrants that can lead to arrest and are punishable by up to six months in jail. AB116 — a bill that Assemblywoman Rochelle Nguyen (D-Las Vegas) presented Thursday in the Assembly Judiciary Committee — would make them civil infractions and not punishable by jail time that can lead to job losses and other ills. 

“It is a reality many Nevadans face — a simple $400 traffic ticket can have a serious adverse effect on a person's life,” said Alex Wong, a youth legislator who helped present the bill. “Courts, in an effort to enforce the offense, may issue criminal warrants for these people. Many times, this provides a tragic introduction to the criminal justice system.”

About 270,000 traffic warrants were pending in the Las Vegas Justice Court alone at the start of the pandemic, when that court announced it would temporarily not be enforcing those warrants because of the health crisis.

While Nevada is one of just 13 states to categorize a traffic ticket as a criminal issue, efforts to downgrade it have failed in sessions dating back to at least 2013 and in spite of an interim study on the topic. This time around, however, prosecutors who were previously opposed have added their support, saying they’d prefer to devote their resources to prosecuting serious crimes rather than traffic cases.

“Of all the discussions that we've had about criminal justice reform, it seems we’ve ignored the most obvious candidate for reclassification, in terms of bill passage,” said John Jones of the Clark County district attorney’s office. “We're talking about a low level, minor traffic offense like speeding, having your tail light out. It surprises most people to learn they're committing a misdemeanor offense when they commit a traffic violation.”

Nguyen emphasized that the bill would still allow serious driving-related offenses, such as vehicular manslaughter or driving under the influence, to be prosecuted criminally. And the measure would maintain a system of “points” or demerits on someone’s driving record that can lead to a license suspension.

But Nguyen’s biggest challenge is likely to be local governments. Representatives from Carson City, Douglas, Lyon, Storey, Lincoln and Clark counties, as well as the cities of Las Vegas, Henderson Reno and Sparks, testified in opposition, citing budget concerns. The City of North Las Vegas testified in neutral.

“I am aware of ... the current funding structure and I don't want to disrupt that,” Nguyen said. “And so, while I may probably fundamentally disagree that we should be funding our courts and governments on the backs of traffic citations, I also recognize that and I'm flexible enough to know that I need to be realistic, I need to ... come up with pragmatic solutions for our local governments.”

Leisa Moseley of the Fines and Fees Justice Center said that in spite of public records requests, local governments have not offered a clear picture of how much money they make from fines off traffic tickets. But several submitted fiscal notes estimating how much it would cost them to implement the bill and lose the ability to jail people for failing to pay up. Clark County topped the list, estimating it would lose nearly $13 million a year by having to make the change, out of annual general fund revenues of about $1 billion.

Lincoln County District Attorney Dylan Frehner said that the pandemic had reduced the county’s collection of fines and fees to less than $100,000 instead of the budgeted $350,000, putting a major wrench in a county general fund budget of $4 million. He also testified how time-consuming it can be to collect civil fines from people.

“The impact that this is going to put on us, to change our systems to be able to do additional work, to go outside and try to collect these — it's going to make it very difficult on the county,” he said. 

But proponents of the bill question whether local governments are factoring in how much they would save by not sending traffic offenders through a criminal process. Public defender lobbyist John Piro said they needed to count time spent in jail, which is $190 per night at the Clark County Detention Center.

Also in opposition was Las Vegas Metropolitan Police Department lobbyist Chuck Callaway, who said that while the general concept of decriminalization was “great,” he didn’t want it to change procedures for officers in the field.

“We all know traffic violations — minor traffic violations — often lead to major arrests,” he said. “Just a couple of examples of that are in the case of Warren Jeffs, the child rapist who was stopped for a temporary plate on his vehicle, Timothy McVeigh, the Oklahoma City bomber who was stopped with no license plate on his vehicle.”

In a tweet after the hearing, Nguyen pushed back on Callaway’s argument, saying that Jeffs was arrested on felony warrants for sex assault and that the police officer in the case would have still been able to stop the vehicle under the provisions of AB116.

Public commenter LaNiqua McCloud testified to the long-term consequences of the state’s current policy, saying she got arrested over a traffic ticket when she was six months pregnant and traveling to a high-risk pregnancy appointment. She was in jail for 17 hours before she was bailed out, and she said the experience has still held her back from certain opportunities in spite of having a bachelor’s and two master’s degrees.

Others spoke of how the practice disproportionately affects poorer Nevadans.

“We're not supposed to have debtors’ prisons in the United States. That's literally something out of a Charles Dickens novel,” said Jim Hoffman of Nevada Attorneys for Criminal Justice. “The idea that people should be locked up because they're too poor to pay is something that we as a society, firmly reject.”

Nguyen said she was hopeful that this year’s venture into making the change would be more successful. She said she’s counted 37 stakeholder meetings she had already had on the bill and has both progressive and conservative supporters.

“I'm proud to have a more diverse group of individuals and organizations’ support, and I think that's what's needed when you're taking on such, like, a monumental task,” she said.

Thursday was the bill’s first hearing, and the committee did not vote on the measure. Committee chairman Steve Yeager (D-Las Vegas) said if the bill comes up for a committee vote, it would likely be amended from the current version; Nguyen said there are still active discussions about the structure of civil penalties for traffic violations and how that revenue should be disbursed.

Bill allowing businesses to prohibit firearms on property, banning ‘ghost’ guns sparks passionate testimony

Enter just about any private business in Nevada, and if a “No guns allowed” sign is posted outside the premises, it doesn’t carry much legal weight.

Beefing up that section of law, and banning sale or possession of privately assembled “ghost guns” without serial numbers are the point of AB286, a bill by Assemblywoman Sandra Jauregui (D-Las Vegas) that attracted hours of impassioned testimony during a Wednesday morning committee meeting. 

Jauregui, a survivor of the 2017 Las Vegas mass shooting that left 60 dead and hundreds injured, said she was bringing the measure as an attempt to both address gun violence generally in the state — pointing to the “ghost guns” used in the 2019 mass shooting at a Los Angeles area high school — and to give private businesses, including major casino resorts, a stronger legal standing to prohibit gun possession on their property.

“I know Metro and the sheriff are doing the best they can to handle this uptick, but they simply need more tools,” she said. “In a post-COVID world, we know we need to show visitors and residents alike that we are a place where you can forget about your problems, not come to find more. We know we need every selling point we can get to get our tourism economy back on track. “

Per existing law, no firearms — open or concealed — are allowed at K-12 schools, higher education institutions, child care facilities and some libraries. Public government buildings such as a courthouse, city hall or police station can prohibit the concealed carry of firearms if they post a sign or have a metal detector on the premise, but open carry is generally allowed (Nevada has no law prohibiting open carry of firearms).

Businesses typically do have a right to ask people carrying a firearm to leave the property under threat of trespass, which carries a misdemeanor penalty. 

But MGM Resorts executive John McManus, who presented the bill along with Jauregui, said that the current law lacks the “teeth” necessary to be effective, and that the proposed bill would “prevent the emergence of a culture that invites violence on the Strip.”

“We can exclude them through our general rights as a property owner, but right now, to my knowledge, there's nothing in Nevada law that stops you from carrying an illegal firearm into a casino environment,” he said.

So what would AB286 actually do? Per the bill (and an amendment making minor changes presented Wednesday by Jauregui), the legislation would explicitly authorize a “covered premise” to prohibit most individuals from possessing a firearm on its property without the written consent of the owner. A covered premise means any private business where a large number of people gather — including casinos, churches, shopping malls, stadiums, movie theaters or golf courses.

If a business opts in to the provisions, it would be required to post a “sufficient warning” — which could include a large sign in a “conspicuous place” or documents provided at the time of check-in at a hotel. The bill includes several exemptions, including for law enforcement or security guards, residential unit owners, or guests attending a trade show where firearms are purchased.

People who violate the provisions of the bill would face a misdemeanor penalty, with escalating charges up to a minor felony charge for repeated violations. 

The legislation also would ban the possession or sale of an unfinished frame or receiver, and ban sale or manufacture of any firearm without a serial number (with exemptions for law enforcement, licensed firearms importers, or for antique or inoperable firearms).

Steve Lindley, a program manager with the Brady Campaign, showed lawmakers a “ghost gun” kit purchased with cash in California, walking lawmakers through the ease with which such kits can be turned into operable firearms. He said the kits often fly under the radar and don’t have a serial number, making it easier for people not normally allowed to purchase or own firearms to work around the system.

“Because they're not serialized, there's nothing that law enforcement can do to trace back to the individuals who originally purchased them, or the manufacturers,” he said. “And that is a huge problem when it comes to investigations of serious crimes, specifically, shootings and homicides.”

But much of the attention on the bill focused on the ability of businesses to prohibit firearm possession on their premises.

Asked by Assemblyman P.K. O’Neill (R-Carson City) why the bill was necessary given existing trespassing laws and penalties, McManus said that MGM Resorts and other Strip properties needed additional tools to address the recent uptick in violent crime on the state’s most famous boulevard.

“It gives law enforcement greater basis to interact with them, and to question them and to determine what their intentions are, what their purpose of having a weapon on the property is,” the casino executive said. “Right now, if they decide to walk out the door, that's where the interaction ends. All you can do with the current trespass is ask somebody to leave, there's no other sanction.”

But that section of the bill attracted much of the opposition — opponents said it would create a confusing patchwork of rules for lawful gun owners, such as concealed carry weapon holders, to navigate.

“It's really a shame that they're going to have to go out and plot out their course for any day running errands to try and navigate, who they have permission from, whether they're going to run into the sporting goods store, to the shopping mall, or perhaps they're having lunch at a certain hotel, restaurant, etc.,” National Rifle Association lobbyist Dan Reid said. “So this is really disappointing.”

John Piro, a lobbyist for the Clark County Public Defender’s office, said the bill should be modified to only allow criminal penalties for those who “knowingly” violate the law, change how the bill treats individuals keeping firearms in their cars, and standardize the criminal penalty scheme throughout the bill.

And even though the bill contains explicit carve-outs for large firearm trade shows, Michael Findlay with the National Shooting Sports Foundation — organizers of the annual SHOT show — testified in opposition to the measure, saying it could lead to a “logistical nightmare” for the organization.

“We have longstanding relationships, we love Vegas, our guys are comfortable,” he said. “Our men and women that attend the show are very comfortable in the town...But if all of a sudden they show up, and things have changed also in restaurants, lodging, locations have signs posted, because most of our attendees are from either out of state or even out of the country, there's real questions as to whether what they do in that situation.”

The NSSF’s objections were shared by a lobbyist for three Teamsters unions that work the trade show — notable as similar objections from the foundation and organized labor helped sink a portion of Jauregui’s 2019 gun safety bill

For her part, Jauregui said her “virtual door” was open to any parties who had an interest or suggestion on how to improve the legislation — but only for those who actually want to see the bill passed.

“I will not sacrifice the safety of every visitor and every other convention, for the convenience of one,” she said.

Lawmakers begin tackling complex issue of jury trials for misdemeanor domestic violence cases

In 2019, the Nevada Supreme Court issued a ruling that fundamentally changed the state’s criminal justice system.

The state’s highest court found that a recent state law prohibiting firearm ownership for individuals convicted of misdemeanor domestic violence crimes was a serious enough punishment to warrant jury trials for defendants in those cases.

But a state Supreme Court order doesn’t always neatly translate into real-world practices. Municipal courts throughout the state, which typically handle misdemeanor domestic violence cases, scrambled to figure out ways to hold jury trials in courts and courtrooms not really set up for them (the City of Las Vegas temporarily stopped prosecuting domestic violence cases as a result of the case).

The issue was temporarily put on the backburner in 2020, as courts throughout the state halted all forms of jury trials as a precautionary measure amid the COVID-19 pandemic. But the issue hasn’t gone away, and now local governments are looking to the Legislature to hash out the issues and develop a structure for such jury trials to commence.

That’s why lawmakers in the Assembly Judiciary Committee spent several hours Wednesday hearing AB42, a measure sponsored by the City of Henderson and intended to implement the court’s 2019 decision by creating a framework for the novel phenomenon of holding jury trials in municipal court.

“We had never had this in the state of Nevada prior to this decision,” Henderson Senior Assistant City Attorney Marc Schifalacqua said during the hearing. “And while the decision was very straightforward, and the reasoning makes sense, it did raise many more questions than it actually answered.”

Although the U.S. Constitution guarantees the right to a jury trial, some jurisdictions (including Nevada) have not offered rights to a trial by jury for individuals charged under a “petty” offense, which typically means a violation with a maximum prison sentence of no more than six months. For an offense to move out of the “petty” category, it must come with additional penalties that are “so severe that they clearly reflect a legislative determination that the offense in question is a serious one.”

In 2015, state lawmakers approved a wide-ranging bill sponsored by Republican Sen. Michael Roberson that in part prohibited anyone convicted of a misdemeanor domestic violence charge in Nevada (or any other state) from owning or possessing firearms — the first domino that eventually led to the court’s 2019 ruling and subsequent implementation problems for municipalities.

Part of the problem, Schifalacqua said, is that the ruling came a few months after the Legislature had adjourned in 2019, meaning that cities and municipal courts didn’t have statewide guidance or a set of laws to follow to ensure that the new rules were being followed in all jurisdictions around the state. Additionally, several cases have been filed challenging municipal court authority in those cases, as those courts are typically governed by city charter and don’t have explicit authority to oversee a jury trial.

Many jurisdictions ended up passing city ordinances to implement the court’s order, but Schifalacqua said that solution was a “Band Aid” on the underlying implementation issue.

The bill (including an amendment proposed by the City of Henderson) provides “clear language” that municipalities have a discretionary right to conduct jury trials on domestic battery charges, provides a set of rules for how municipal courts conduct jury trials, and modifies the definition of which domestic violence crimes warrant a prohibition on gun ownership.

That last part, which changes state law from a federal definition of domestic battery to the one in state law (or “substantially similar” laws in other jurisdictions), attracted a host of questions and concerns from both lawmakers and pro-gun groups, including that it would inadvertently broaden the class of people prohibited from owning a firearm because the state domestic violence law is broader than the federal definition.

“The federal law is important because it provides consistency,” National Rifle Association lobbyist Dan Reid told the committee. “There's clear elements as far as what is both domestic and violent to the lifetime prohibition for firearms.”

Bill supporters, including Schifalacqua, noted that the provisions wouldn’t affect individuals who committed a domestic violence crime prior to the enactment date of January 2022 — meaning that they wouldn’t lose their firearm rights overnight. Schifalacqua also noted that about 30 other states had adopted protections related to domestic violence that went beyond the federal definition, with many of them also prohibiting gun ownership.

The bill attracted support from prosecutors and victim rights advocates, who said the measure could help reduce gun violence in the state. Nevada routinely ranks high in state rankings of domestic violence — Schifalacqua said states that had gone further than the federal domestic violence definition have seen a sizable decrease in gun violence or homicides between people in domestic relationships.

Carlene Helbert, a deputy city attorney with the City of Las Vegas, said the jurisdiction handles between 3,500 to 5,000 referrals of misdemeanor domestic violence cases every year. She said that legal challenges related to the city’s ability to prosecute those cases had left them at a “standstill,” mentioning that she had seen victims of abuse attend court, testify, and then go home with the alleged abuser.

“As a prosecutor, I have to watch this person leave with somebody who's committed violence against them, knowing that they're going to a house that has firearms in it,” she said. “And I have to think to myself, is that victim actually safer for having gone through this process?”

Michael Pariente, an attorney representing criminal defense trade group Nevada Attorneys for Criminal Justice and the attorney who successfully argued the initial case before the state Supreme Court, said it was “unacceptable” that the bill allowed smaller municipalities and courts to potentially opt out of the bill’s provisions, and that it should be amended to either require jury trials or require those cases be filed in another court. Pariente also said the minimum jury size (six) was too low.

“A defendant in a civil case who's being sued for more than $15,000 has the right to an eight person jury, though he or she is not facing incarceration, not facing a criminal conviction, nor facing the loss of a constitutional right,” Pariente said. “Yet a person charged with battery domestic violence faces up to six months in jail, and the lifelong loss of a constitutional right. Again, a person facing battery domestic violence only gets six persons on their jury.”

Representatives of the Clark and Washoe county public defender’s office also testified against the bill, saying the limited number of peremptory challenges in selecting jurors was “very detrimental” to finding fair and impartial jurors. But many opponents of the bill sounded cautious notes of optimism that additional amendments could fix their issues with the legislation.

“There is a cure to this problem, but the bill as written, even with its amendments, are not the cure,” Clark County Public Defender’s Office representative John Piro said. “But I think we can get there if we continue to work on that.”

Behind the Bar: Stablecoin, utility regulator fines, abolishing K-12 commissions and more compensation for the wrongfully convicted

Behind the Bar is The Nevada Independent’s newsletter devoted to comprehensive and accessible coverage of the 2021 Legislature. 

In this edition: A bill on “Stablecoin” that is totally not related to Innovation Zones, increasing utility regulator fines, changes to wrongful conviction compensation and heartburn on abolishing education-focused commissions, including one created by beloved former Assemblyman Tyron Thompson.

Check this link to manage your newsletter subscriptions. This newsletter is published on Mondays and Thursdays.

I want to hear from you! Questions, comments, observations, jokes, what you think we should be covering or paying attention to. Email me at rsnyder@thenvindy.com.


I’ve spent a lot of time this week thinking about Texas.

Everyone is generally aware of the massive power grid failures that left millions of Texans without reliable electricity, natural gas service, or even clean water in the midst of a massive winter storm. Dozens of deaths have already been reported and the toll is expected to rise.

I’ve avoided commenting on much of the news in Texas because I’m just not an expert in ERCOT, natural gas pipeline infrastructure or the wild confluence of factors that led to the greatest forced blackout in American history (I also have to write this newsletter). There have been some great breakdowns of what exactly happened to the Texas power grid, as well as some not-so-great ones.

But back in 2017 and 2018, I spent probably too much of my time following the debate and issues around potential implementation of a similar retail energy market in Nevada, in the form of Question 3. It would have amended the state’s Constitution to require that Nevada set up a retail electric market similar to the one in Texas and a handful of other “choice” states (I wrote a long story about why the measure failed).

Even if Question 3 had passed, Nevada would still be in a much different position than Texas. ERCOT, the grid manager for Texas, isn’t connected to any other state’s grid in order to avoid federal regulation. Nevada also has a much different mix of fuel resources than Texas, a different geographical layout and different weather conditions and patterns that affect electric supply and demand in different ways.

I don’t want to get too far in the weeds on retail choice states and what happened to Texas last week, again because this is nominally a newsletter about the Legislature and not Riley’s Thoughts About Electric Markets.

One universal takeaway from last week is this: our lives are governed by increasingly complex systems, whether it be the electric grid, health insurance, unemployment insurance or even the operations of the state government and Legislature. At the same time, expertise in those areas is harder to find, and people tend to apply their political priors to complex systemic issues.

It’s why I’m glad to work in a newsroom where I have the flexibility to spend a few days digging into regulatory filings for a more-than-surface level dive into resource adequacy and how worried Nevadans should be about a California or Texas-size grid disaster happening next summer.

I think there’s real value in reporting on complex issues that is not only deep and accessible, but free to the general public. So while stories on utility regulatory filings aren’t going to get the same attention as a story on which players the Golden Knights have signed, there is a real public service in digging into these issues before they reach the catastrophe phase.

— Riley Snyder

Assemblywomen Claire Thomas, left and Daniele Monroe-Moreno during the first day of the 81st session of the Legislature in Carson City on Monday, Feb. 1, 2021. (David Calvert/The Nevada Independent)

Conine prepares Stablecoin bill, says it’s not related to Innovation Zone run on Stablecoin

Treasurer Zach Conine wants to prepare Nevada government agencies to accept the cryptocurrency Stablecoin as payment — although he insists his bill on the subject is unrelated to Blockchains LLC’s well-publicized proposal to create an entire “Innovation Zone” that secedes from the surrounding county and brings in tax revenue through a Stablecoin product.

Conine discussed the concept on Wednesday as SB39 at a hearing in the Senate Committee on Government Affairs, where he fielded a question about the polarizing Innovation Zone concept.

“The way I'm interpreting this bill is that it is connected to this innovation city. And this is a foundational piece for it to work,” said Democratic Sen. Dina Neal.

“It's not connected,” Conine retorted. “So the ability for us to take payment in the form of Stablecoins — and Innovation Zones, at least to the extent that I understand them — have nothing to do with each other.”

Stablecoin is a type of cryptocurrency that is tied to a reference point such as the U.S. dollar, in contrast to cryptocurrencies such as Bitcoin that don’t have such a peg and are much more volatile. Conine’s bill authorizes government entities to accept Stablecoins as payment in government transactions, just like they can accept credit cards.

“Now one of the reasons we want to put it into statute versus, say, just doing it in the same way that we don't necessarily contract a new piece of statute when we do PayPal or Zelle or something like that, is because we want companies to know that Nevada is open for business, to try and attract businesses that do this kind of thing to try it here,” Conine said.

Stablecoin operators, like credit card companies, can charge a fee for transactions using their Stablecoin. Blockchains LLC envisions creating its own Stablecoin to power “Painted Rock Smart City” and also be circulated well beyond the semi-autonomous Innovation Zone, according to a draft presentation of the proposal obtained by The Nevada Independent.

As previously reported in this newsletter, a PAC registered to Conine and his wife Layke has taken $60,000 from Blockchains LLC founder Jeff Berns. But it’s also not the first time Conine has tried his hand at solving byzantine monetary conundrums (see: his ongoing attempt to solve marijuana banking).   

“In today's connected world, technology changes rapidly and government is often the last to keep up,” Conine said. “Senate Bill 39 presents an opportunity for the state to not only keep up, but to forge a path ahead.”

— Michelle Rindels

Utility regulators seek update to fining powers largely unchanged for four decades

Last year, the California Public Utilities Commission assessed a $200 million fine against Pacific Gas & Electric Company for its role in the deadly 2018 Camp Fire that left 85 people dead.

But if a similar tragedy happened in Nevada, caused by negligence by one of the state’s utility companies, the Nevada Public Utilities Commission would likely only be able to assess a much smaller fine — somewhere in the ballpark of $100,000.

That’s the reason the PUC filed SB18, which was heard Thursday in the Senate Committee on Growth and Infrastructure. PUC officers said that updating the fine amounts (many of which were set up to 40 years ago and never updated) would give the regulatory body the ability to levy fines that would be more than a flesh wound to the massive, investor-owned utilities like NV Energy or Southwest Gas that the commission currently oversees.

“Ultimately, the purpose of this bill is to empower the PUCN to impose fines that are concerning to those companies,” PUC Executive Director Stephanie Mullen said during the hearing. “We don't want the maximum fine amount to be something that they're comfortable paying, nor do we want the fine framework to be so prescriptive that it allows for companies to engage in a cost benefit analysis as to whether it makes business sense to comply with the law.”

For violations of rules and laws covering natural gas storage facilities and pipelines, the legislation (per a proposed PUC-backed amendment) would raise the fine amounts from up to $1,000 per day to $200,000 per day, with a maximum fine set at $2 million (previously set at $200,000). PUC General Counsel Garrett Weir said those amounts were in line with existing federal standards.

The bill would also create an administrative fine category — anyone who provides the PUC information which is “inaccurate or misleading and which the person knew or should have known was inaccurate or misleading.” Doing that, or violating any rulings or orders of the PUC, could now be punishable by a fine of up to $100,000 per day (up from $1,000) and a top-line limit of $10 million (up from $100,000).

It would also raise the fine amount for the unusual crime of operating a public utility without first obtaining a certificate of public convenience (or failing to file a report required by the Commission) from a modest $500 penalty to a maximum fine of no more than $50,000. 

Fines are remitted to the state’s general budget account and not kept by the PUC.

A cadre of business organization and utility representatives — Southwest Gas, Nevada Resort Association, Nevada Taxpayers Association, Vegas Chamber — testified against the bill, with a general concern that the fines were being raised too much. A lobbyist for NV Energy testified in neutral, saying that the utility agreed the fines should be raised but thought they should be tied to inflation rates.

Weir said the commission was willing to work on adjusting the administrative fine scale, but he noted existing law requires the PUC to consider the appropriateness of the fine to the size of the business and other mitigating factors. A larger fine maximum would give the PUC more flexibility in punishing bad, but not the worst, behavior.

“I think the commission struggles with determining what to fine an offense where, say, $100,000 is the maximum, is appropriate, but you don't want to send a message that that's an egregious violation, as something where there's loss of life, or some sort of terrible outcome,” Weir said. “So it's really a struggle. You hope to have that larger range to assess an adequate penalty when something is bad, but not the worst possible type of violation.”

— Riley Snyder

Advocates seeking more compensation for those wrongfully convicted

Public defenders and criminal justice advocates are concerned that a bill to revise the law on compensation for wrongful convictions does not include provisions accounting for the time that a person spends behind bars prior to their conviction.

“As the bill is drafted, it says you would receive compensation only after the time you were wrongfully convicted,” John Piro, of the Clark County public defender’s office, said during a legislative hearing on Friday. “However, there is time that you spend in jail waiting for your case to go to trial, and those are years of your life that you lose, as well.” 

Assembly Judiciary Committee Chairman Steve Yeager (D-Las Vegas), primary sponsor of the bill (AB104), said he thinks opposition for the bill comes from a good place and that he would “probably love to give even more compensation” to those who have been wrongfully convicted. But he also said he was unsure of the proposals from those opposing the bill as it stands.

“The request really is to compensate folks for pre-conviction incarceration,” Yeager said during the meeting. “And as many of you know, people are incarcerated, right or wrong, they're incarcerated all the time before they get to trial. And right now, if you're incarcerated before you get to trial, and you go to trial, and a jury acquits you, the state doesn't compensate you for that time.”

Nobody testified in support of the bill during the hearing. Yeager said that he would continue to work out issues with the legislation before taking it to a committee vote.

The proposed measure builds off of another bill from 2019, AB267, that makes Nevada one of 35 states allowing people who were wrongfully convicted to collect payment from the state as compensation for the time they lost while behind bars.

Since the establishment of AB267 in Oct. 2019, seven individuals have filed wrongful conviction compensation complaints, and the state has settled four cases resulting in aggregate payouts of $7.69 million, including nearly $1 million approved this month for Reginald Mason. That cost could continue to rise, however, as the law includes a provision for reimbursement for other continuing costs such as health care or housing assistance.

— Sean Golonka

Mentoring panel championed by Tyrone Thompson may be spared in commission clean-up

A bill proposed by the Nevada Department of Education would revise and abolish commissions and advisory councils that are no longer in use, inefficient or have overlapping duties, but there is a chance that some on the chopping block — such as the Commission on Mentoring — could be spared. 

State Superintendent Jhone Ebert presented the bill, SB76, to the Senate Education Committee on Wednesday. It states that the duties of the proposed-to-be abolished commissions, councils, and training programs would be transferred to the Department of Education.

The department hopes that eliminating the committees would make the agency more efficient, as it is difficult to recruit to fill seats on the panels and meet quorum. Abolishing the committees would not get rid of the work the department already does in those topic areas, Ebert said.

The Nevada Commission on Mentoring (NCOM), established by the late Democratic Assemblyman Tyrone Thompson, was on the list of being abolished, but Ebert said that the bill would be amended to keep it because it is the only place in state law that details mentoring issues in the education landscape. The bill language is expected to be changed so the mentoring commission remains in statute, but the Department of Education would not be providing the administrative support, which allows the commission to operate independently.

Karl Catarata, a youth commissioner in the Commission on Mentoring, commented in support of amending the bill. He said his experience with the commission has come “full circle,” as he was mentored by Thompson and he is now part of the commission. 

“I hope that you all consider keeping the state entity that regularly brings together mentoring leaders across our state and vote in the affirmative for the...amendment this session,” Catarata said. “The commission is always willing to work with you all on this committee and the Department of Education to continue successful mentoring outcomes, while being frugal and efficient about resources for our throughout the state.”

Some boards, commissions and councils currently set for elimination include the State Financial Literacy Advisory Council, the Commission on Educational Technology, the Council to Establish Academic Standards for Public Schools and the Statewide Council for the Coordination of the Regional Training Programs. 

Sen. Roberta Lange (D-Las Vegas) suggested that the Education Committee should look at each commission that is proposed to be abolished and have a more in-depth discussion on whether to keep it or not. 

— Jannelle Calderon

Bill would stave off court fees for more people facing eviction 

Lawmakers are considering a bill that could help Nevadans facing eviction by simplifying a process to avoid court fees.

When someone is given an eviction notice, they must file a summary eviction notice with the court, which costs $71 in Clark County. During a legislative hearing on Friday of AB107, Bailey Bortolin, policy director for the Nevada Coalition of Legal Service Providers, said the fee can pose a hardship for those facing eviction.

“That's a real impediment if the reason that you're there is because you didn't have enough money to pay to pay your rent in the first place,” Bortolin said.

The state already has a law in place that allows Nevadans to waive the fees required to prosecute or defend a civil action, but Bortolin said that that law is inadequate.

“By and large, our fee waiver system allows many people, thousands of people, every year to proceed, but it's not specific in who that should apply to,” Bortolin said. “And so what we've found is really just inconsistent results across the state.”

The bill would expand and broaden the qualifications for who can apply to have their fees waived, including any client of a legal aid program, any recipient of a state or federal program for public assistance, or anyone who “has expenses for the necessities of life that exceed his or her income.” 

Bortolin also noted that the courts would not bear the burden of waived fees and that the fees for the civil action filings would be paid by the legal aid providers in the state.

Criminal justice advocates noted during the hearing that the bill would make it easier to dispute evictions at a time when many Nevadans are struggling financially. 

“Poverty should never be punished by forcing unequal access to justice,” Liz Davenport of the ACLU of Nevada said during the meeting. “Existing law does not provide Nevada's courts a clear and objective standard for granting fee waivers and further does not provide an applicant with clear guidance.”

— Sean Golonka

DARK SKY SANCTUARY BILL ADVANCES

The Senate Committee on Natural Resources unanimously passed SB 52 on Tuesday, which would establish a voluntary state-based program for “dark sky” designations. The bill authorizes the state’s Division of Outdoor Recreation to create a voluntary program designating certain parts of the state as “dark sky” areas, which are remote parts of the state not affected as much by light pollution. The photo above was taken south of the Massacre Rim Wilderness Study Area, one of two areas in the state certified as a Dark Sky Sanctuary by the International Dark-Sky Association. (Joey Lovato/The Nevada Independent)

What we’re reading

Our legislative fundraising overview and breakdown.

Sens. Jacky Rosen and Catherine Cortez Masto will each get their own Senate subcommittees. Turns out that being 86th and 80th in Senate seniority can pay off!

The Assembly Republicans revealed their 2021 legislative priorities on Thursday. The caucus has also said its official position is that the 2020 election, where Republicans picked up three Assembly seats, was not “fraudulent.” 

Nevada Attorney General Aaron Ford’s office is backing a bill to ban no-knock warrants, made infamous through the police killing of 26-year-old Breonna Taylor.

A very technical clean-up bill on the state’s unemployment system usually wouldn’t get a lot of public attention, but DETR nonetheless remains in the spotlight.

Connecting released inmates with Medicaid benefits (Nevada Current)

More details on the bill to curtail debt-based suspension of driver’s licenses (Nevada Current)

Update on the “tainted voter rolls” lawsuit filed by former AG Adam Laxalt (Associated Press)

About one-third of the Nevada Supreme Court budget is based on administrative assessments, which have gone down greatly since the start of the pandemic. (Nevada Appeal)

More national coverage on the ‘Innovation Zones’ (The New Republic)

Sen. Ben Kieckhefer is planning a bill that would create an esports regulatory body (Las Vegas Review-Journal)

UPCOMING DEADLINES

Days to take action on Initiative Petitions before they go to the 2022 ballot: 18 (March 12, 2021)

Days Until Legislator Bill Introduction Deadline: 21 (March 15, 2021)

Days Until Sine Die: 98 (May 31, 2021)

Podcast: Lawyer John Piro says his arrest while serving as a legal observer at Vegas protest felt ‘degrading’

Interview with John Piro on June 16, 2020 for IndyMatters podcast.

On June 3, Gov. Steve Sisolak tweeted his support for volunteer lawyers serving as “legal observers” for Black Lives Matter protests. He specifically praised John Piro, a high-ranking member of the Clark County public defender’s office and a familiar presence as a lobbyist in Carson City’s halls of power.

But on Saturday, Piro found himself in the same place as many of his indigent clients — hands behind his back and facing down a court date. Piro is charged with “pedestrian intentionally in a roadway” stemming from an arrest that happened at a Saturday protest in Las Vegas while he was wearing a red shirt emblazoned with the words “legal observer.”

“It's a very degrading feeling,” Piro said in an interview on Tuesday with the IndyMatters podcast. “Makes you feel like you're not a citizen in a democracy but more in a police state.”

Legal observers, many trained through the National Lawyers Guild, are meant to serve as neutral monitors at demonstrations to keep an eye out for unconstitutional conduct from the government. Sisolak issued a statement over the weekend saying that he wanted an investigation into their arrests.

But in a press conference on Tuesday, Clark County Sheriff Joe Lombardo asserted that some of the observers were not remaining neutral, instead “antagonizing and obstructing our officers” and becoming active participants in the rally while police were trying to get demonstrators out of the road to maintain public safety.

Lombardo played a series of video clips on Tuesday, including one of Piro’s arrest and another showing observers approaching police, with members of the crowd following close behind. The sheriff said some observers were “seemingly leading the crowd of aggressive protesters” and that one “shoved her cell phone camera up to an officer’s face in a confrontational manner.” 

“As I respond to the criticism of the tactics that LVMPD utilized, I’m concerned about the dangerous rhetoric that has been displayed online. Clearly this is a lot of emotion, often intermixed without facts, that continues to amplify tensions in our community,” Lombardo said. “It only emboldens agitators and extremists.”

As Piro tells it, he and colleague Belinda Harris were boxed in by police lines in front and in back and were waiting to get more information on a fellow legal observer who had been arrested. They first spoke with a lieutenant who assured them they could get information if they waited.

“So we were sitting there on the corner of the sidewalk of Russell and Las Vegas Boulevard, waiting for our chance to be able to speak with officers to get information of the first legal observer that was detained, when all of a sudden multiple uniformed officers walked in in our direction and snatched us off the sidewalk without warning,” Piro said.

Video shows the two, restrained with zip ties, being walked across Las Vegas Boulevard to a center median before officers searched their pockets.

“I’m actually glad that they shared that video because it depicts exactly what we said happened,” Piro said.

While some observers were taken to the Clark County Detention Center, including one woman who Piro said described to him “deplorable” conditions within the jail, he and others were simply cited and released.

He pushed back on Lombardo’s characterization of the legal observers’ conduct, saying that the volunteers were not getting involved but rather trying to get photos and other information about arresting officers.

“This use of the word ‘antagonizing,’ I believe, is purposeful. It's the same type of language that Bull Connor used to describe Dr. Martin Luther King,” he said, referring to the Alabama Public Safety Commissioner who ordered fire hoses and police dogs be used on civil rights protesters in the 1960s. “‘Antagonizing’ is a way to dehumanize people with which you disagree, to try to make your unjust actions seem just. And that's what I believe the sheriff was doing. And it's really disheartening.”

Lombardo said police had to balance people’s First Amendment rights with protecting lives and property. He added that he’s confident in Metro’s ability to investigate its own officers’ conduct toward protesters and argued that the agency has no record of concealing information or purposely skewing an investigation toward an officer.

Piro and other lawyers and legal observers who were at the protests, however, are scheduled to appear at a news conference in Las Vegas on Thursday morning to “call for de-escalation” after the incidents. Piro said the arrest has affected him more than he thought it would.

“It really messes with you, the feelings of helplessness, the feelings of powerlessness, such that maybe you feel your only option is to protest in the streets so that people can see how you feel,” he said. “If this could happen to me, imagine how it's happening to people without my resources, not in the public eye. And how we so easily excuse it.”

Bail reform efforts going down to the wire as Legislature heads to finish line

William McCurdy speaking into a microphone during a protest against cash bail outside of the Nevada Legislature

Efforts to reform Nevada’s bail system for cash bail are still on life support, with any movement likely to come down to the wire as the legislative session draws to a close.

Despite a flurry of rallies and campaign pledges to “end cash bail,” no surviving bill in the Legislature at this point would entirely do away with the process of requiring some monetary deposit in return for pretrial release, and other bills that attempted to substantially overhaul the system have largely fallen by the wayside.

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.

Assemblyman Ozzie Fumo speaks in front of the legislative building where activists and progressive groups are calling for an end to cash bail.
(Joey Lovato/The Nevada Independent)

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.”