By Sean Golanka
In 2019, Democratic lawmakers pushed forward a wide-ranging package of criminal justice reforms aimed at curbing a ballooning prison population that threatened to bust the state’s budget for the carceral system.
Despite AB236 garnering bipartisan support, the sweeping changes made to the penalty structure drew the ire of prosecutors and police — later scapegoated for rising property crimes and used by Clark County Sheriff Joe Lombardo to hammer Democrats as “soft on crime” in his successful run for governor last year.
But when the dust settled at the end of Lombardo’s first legislative session in June, Democratic lawmakers had significantly whittled the Republican governor’s ambitious public safety policy package that sought to undo many key changes to criminal sentencing from AB236. They effectively blocked him from any significant reversal of the 2019 reforms.
What has happened since the major 2019 overhaul of the state criminal code? Why did Lombardo’s proposed changes fall flat? What’s next for the state’s criminal justice system?
Understanding the effects of AB236 has been complicated by a range of intervening factors — most prominently the COVID-19 pandemic, which upended crime and public safety just months before the implementation of the bill by scaling back policing and freezing progress of cases through the courts. Still, statewide crime statistics show a varied picture of public safety, including an increase in property crime and decrease in violent crime from 2019 to 2022.
But state officials have estimated that AB236 has already helped avert millions of dollars in costs for incarceration.
Along with a partisan divide in state government that has brewed conflict over criminal justice policy, the state’s three top policy making chieftains come from different criminal justice backgrounds — the governor was a sheriff, the Senate majority leader a prosecutor and the Assembly speaker a public defender.
As the 2023 legislative session focused on other high-profile issues, Lombardo’s bill to stiffen criminal penalties (SB412) fell to the wayside. On the final day of the session, Democratic lawmakers held the first and only hearing of the bill — and had reduced it from 68 pages to nine — before a sprawling huddle of legislators, lobbyists and reporters on the side of the Senate chamber.
With the 2019 changes left largely intact, AB236 remains situated in a politically fraught space — caught between Democrats who want lighter penalties for nonviolent offenses and Republicans seeking a “tough-on-crime” approach.
How did we get here?
Heading into the 2019 legislative session, state officials were faced with a looming crisis. The state’s prison population was projected to soon grow beyond capacity, potentially requiring the construction of a new prison and up to $770 million in new costs over the next decade.
In the leadup to the session, state leaders including Republican Gov. Brian Sandoval charged the Advisory Commission on the Administration of Justice (ACAJ) to review the state’s criminal justice system as part of a federal process that aims to save states money on correctional costs and reinvest savings to help reduce crime.
During that time, staff at the Crime and Justice Institute (CJI) — an organization providing technical assistance to support the initiative — compiled data showing that Nevada was much more likely than other states to use imprisonment rather than parole or probation. They also found that a large majority of Nevadans in prison were sentenced for a nonviolent crime, and that the number of incarcerated individuals was increasing even as prison populations in other growing states declined.
Their research showed Nevada’s imprisonment rate was 15 percent higher than the national average, recidivism rates were rising, more women were entering prison and that the number of people admitted to prison with mental health needs rose 35 percent over the last decade.
“The biggest finding was the number of people that were being admitted to prison who had fairly significant behavioral health challenges,” said Len Engel, director of policy and campaigns at CJI, who added that many defendants had difficulty accessing diversion programs, which can spare people jail time if they successfully complete rehabilitation and counseling.
“We want to do things that we aren’t able to do now because we don’t have the funding, and if we’re going to continue to grow, that money is going to be directed toward the prison system rather than toward public safety,” Engel added
The ACAJ, a group that included judges, lawmakers and others across the criminal justice spectrum, incorporated that data into a report of 25 recommendations meant to save the state hundreds of millions of dollars in prison costs. However, not all commission members were on board — four of the 15 voted against the recommendations, including a justice court judge, a Republican lawmaker, a district attorney and a police lobbyist, who argued the changes reducing felonies to misdemeanors would result in a “negative impact on public safety.”
Those recommendations later became AB236. After months of negotiations and four amendments, AB236 passed on the final day of the session — drawing a 19-2 vote in the Senate with just two Republicans opposed. That included a vote in support from former Sen. Ben Kieckhefer (R-Reno), who later became Lombardo’s chief of staff.
The bill had garnered a broad range of support, not only from the original key backers — including Democratic lawmakers, Nevada Supreme Court Justice James Hardesty, public defenders and the director of state prisons — but also from outside business and political groups, ranging from the Reno Sparks Chamber of Commerce to the libertarian conservative advocacy group Americans for Prosperity.
But top law enforcement groups opposed the changes.
In a final hearing on the bill, they panned language significantly raising the threshold at which drug trafficking charges are imposed, arguing that raising the limit from 14 grams to 100 grams would be too high in the midst of an opioid epidemic.
“This bill as drafted is not the solution,” Jennifer Noble, chief appellate deputy district attorney in Washoe County and a lobbyist for the Nevada District Attorneys Association, said in May 2019.
A lobbyist for the Las Vegas Metropolitan Police Department, which Lombardo led at the time, testified in neutral on the bill during its final hearing, saying he was doing so “in the spirit of compromise and negotiation.”
Despite some differences between the ACAJ recommendations and AB236 — the bill raised the threshold at which the value of stolen goods is considered felony theft from $650 to $1,200, rather than the recommended $2,000 — the bill marked a sweeping set of changes to the state’s legal system.
Pandemic interrupts justice overhaul