Running for sheriff

A think tank—this time the Crime and Justice Institute—has told Nevada what it has known for decades. The state puts more people in prison than, well, almost anywhere.

The study, the latest in a long line of such studies, was commissioned by the State of Nevada.

On one occasion in the 1990s, a U.S. Department of Justice survey indicated that Nevada taxpayers pay more per capita than any in the nation for their prison costs.

At another point, Nevada Supreme Court Justice Charles Springer, then a member of an in-state study panel, said the state imprisons at a higher rate than any known government in human history.

Yet it is seldom an issue in state political campaigns. Rather, it’s likely that such campaigns are a factor in driving Nevada’s high rate of incarceration, since state legislative and even judgeship candidates run on “tough on crime” platforms.

For decades, and particularly since the turbulent 1960s, state legislators have regularly enacted laws creating new crimes, increasing penalties to existing crimes, and making parole more difficult to get.

Paradoxically, criminal justice experts say these steps seldom contribute to reducing repeat offenses. But then, that may not be the purpose of these laws. The purpose may be political, and, if so, it seems to work admirably, continuing to drive the enactment of more and more such laws.

In one judgeship campaign against incumbent Tom O’Donnell in Clark County in 1975, rough television commercials accused O’Donnell of being soft on crime. While the camera panned over a list of names, the narrative went, “These are the rapists, robbers, murderers and thieves put back on our streets to terrorize.”

In that case, O’Donnell survived and was reelected. Not all candidates are so lucky. And many of those who go through such campaigns get the message, and it affects their performance in office.

There has been one technique that helped slow the expenditure of taxpayer dollars on these measures. The state in the late 1980s and early ’90s was nearly at a point where it would be building a prison a year.

That was when Republican Sue Wagner and Democrat Robert Sader became chairs of the two legislative judiciary committees—Sader in the Assembly, Wagner in the Senate.

Until then, each tough-on-crime bill had been scrutinized individually. There was no cumulative assessment of all the criminal justice bills in a legislative session to determine their fiscal impact.

Sader and Wagner held all the measures as a group so their committees could examine the cost to taxpayers of the pieces of legislation together. Wagner said the state’s criminal justice practices “ate up a lot of money that could be spent better on education or a variety of other things.”

“It was the first time anybody had ever really done anything to try to systematically figure out what impact this was going to have,” she said in her 2005 oral history. “Before then, everybody said, ’Oh, good, it’s going to go from a misdemeanor to a felony.’ Well, that’s like going from a county jail to the state prison system. In addition to that, if you go from a misdemeanor to a gross misdemeanor to a felony, there are all these other implications, and people don’t think about that. They just think that they want to be tougher than the next person.”

Sader said the impact of the cumulative assessment was that the state was able to avoid building one planned prison.

The technique was successful enough that it was assumed, in some circles, that it would be continued. But Wagner was elected lieutenant governor, and Sader retired from legislative service. And turnover both in population and in office-holding in Nevada is such that institutional memory is severely lacking. The legislative staff did not inform new lawmakers of previous practices in running committees. Mark James, who later chaired Senate Judiciary, said he had never heard of the Wagner/Sader practice. As a result, lawmakers returned to assessing each bill for its fiscal impact individually.

In this year’s election, while there are a few campaigns using tough-on-crime rhetoric, most candidates are unusually restrained in such verbiage. Most campaign websites focus more on day-to-day concerns of voters like schools and taxes, which may bode well for the kind of bills that will be introduced at the 2019 legislature.

The Crime and Justice Institute has one finding that is striking—that the number of women in prison is on the rise. Though the percent of women in Nevada prisons is still low, it is rising quickly—39 percent in the last decade.

Of even greater concern is why they are there. CJI analyst Alison Silveira told the Nevada Commission on the Administration of Justice last month that almost 80 percent of women in prison are there for non-violent offenses, and about half of them have mental health problems. In addition, about half of them have no previous felonies.

The difficulties candidates face in navigating these issues can be seen in a reader comment posted by a David Depp on a Nevada Appeal report about Silveira’s testimony: “Street criminals and thugs are no longer scared of the court system as they know if they are arrested, they will be out of jail quickly, no matter how many dozens of times they have been arrested for a felony. They have been emboldened and are more dangerous than ever. We need tough-on-crime judges and sentencing to the max and no more plea deals—tell me you’re guilty, and I’ll give you a fine and send you on your way. Arrest, convict, incarcerate. Save our neighborhoods and the lives of the addicts. Elect hard-on-crime judges. Don’t believe them—look at their records.”

One interesting feature of the CJI report is a flow chart that shows the rise of Nevada incarcerations. The chart lacks vertical grids, but it appears that from about 2007 to 2014 the state’s behavior changed. Incarcerations fell from about 2007 to 2009, then rose—but at a lower rate of increase than normal—until about 2013. Then it fell again for about a year. The report does not account for this anomaly.