Justice Commission calls for Sentencing Commission
November 1, 2016
The Commission on the Administration of Justice on Tuesday called on lawmakers to create a Sentencing Commission to even out disproportionate prison sentences handed out across the state.
A study done a decade ago revealed wide disparities between the sentences imposed by judges for the same crimes with certain judges far more likely to give defendants the maximum penalty than others no matter what the specifics of the case.
It's a problem the judiciary has been aware of for decades. More than 20 years ago, one rural judge was quietly admonished by the then Chief Justice of the Nevada Supreme Court to stop sentencing people convicted of minor pot possession to the maximum six years in prison.
Justice Jim Hardesty told fellow commission members the recommendation would create a commission to review and establish sentencing guidelines for all categories of criminal offenses. He said those guidelines would "develop some consistency among the judges in this state."
“We have got to clean up our criminal justice system. This Sentencing Commission is going to have a most beneficial effect for our entire state.”Senate Minority Leader Aaron Ford, D-Las Vegas
He assured fellow commissioners, however, judges would still have the power to deviate from those guidelines. When they do so, however, Hardesty said they would be required to create a record explaining their reasoning. That reasoning would give appellate courts a basis on which to judge sentences handed to felons.
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Director of Corrections James Dzurenda was a member of the Connecticut Sentencing Commission before being hired in Nevada. He said over that five-year period, the number of people in Connecticut prisons dropped by well over 5,000 inmates.
He and Hardesty said the idea is to keep those who belong in prison in prison while getting those who don't out.
Senate Minority Leader Aaron Ford, D-Las Vegas, said this was the agenda item that most excited him about this year's commission.
"We have got to clean up our criminal justice system," he said. "This Sentencing Commission is going to have a most beneficial effect for our entire state."
Hardesty said the national sentencing commission and from some of the 20 other states that have such commissions shows this process provides fairer sentences and reduces the risk of racial disparity in sentencing.
The system modeled after the one created in Connecticut five years ago also scores and ranks the various categories of criminal offenses and includes scoring based on the defendant's criminal history. Non violent criminals would also be eligible for more generous good time credits to reduce their time in prison while violent and sexual criminals would be limited to credits capped at just 15 percent of their sentence.
Hardesty said it would also improve truth in sentencing promises: "If a defendant gets sentenced to a year, they do a year.
"It would be a major shift in the way Nevada approaches sentencing."
Assemblyman Elliott Anderson said it would be "a foundational change in the way we do sentencing."
The request for lawmakers to create a Sentencing Commission was approved unanimously by the 16-member commission.
The commission also approved a recommendation to let inmates pay to have their own DNA samples retested although it was opposed by law enforcement members on the commission.
At present, inmates can ask for a new test of any DNA evidence in their case but it must be approved by a judge and prosecutors often oppose it.
Supporters argued DNA testing has greatly improved over the years and some inmates could be exonerated by a new test.
Attorney General Adam Laxalt opposed the recommendation saying the issue wasn't fully vetted by commission members, that they just heard from advocates who support it, not from opponents and experts.
Assemblyman Elliott Anderson, D-Las Vegas, disagreed.
"Just because there isn't adversary testimony on something doesn't mean it's not a good idea," he said. "And, really, who is against allowing people to find out the truth. That is what our justice system is for."
Laxalt was joined by Chuck Callaway of the Las Vegas Metropolitan Police who said taking up a recommendation from the public like this was outside what the commission should be doing.
They were joined by Eric Spratley of the Washoe Sheriff's Department, who said he was concerned this change could greatly increase the workload on the already overloaded crime labs in the state.
Washoe District Judge Lydia Stiglich said the potential harm from a wrongful conviction "is grave" and she doesn't see any harm in allowing someone to get a DNA test at their own expense.
She also pointed out the test could be done by any certified laboratory, not just one of the state's two crime labs.
Ford said if the commission rejected the recommendation, he would use one of his own bill draft requests to put the issue before the 2017 Legislature.
"This is a no-brainer," he said.
Jorge Pierrott of Parole and Probation, former federal agent, now Assembly Speaker John Hambrick and Douglas County DA Mark Jackson joined the opposition.
But the recommendation passed 9-6 with Laxalt's abstention.