Last week, California Gov. Jerry Brown vetoed nine bills passed by that state’s legislature that would have created new crimes.
“Each of these bills creates a new crime — usually by finding a novel way to characterize and criminalize conduct that is already proscribed,” he wrote in his veto message. “This multiplication and particularization of criminal behavior creates increasing complexity without commensurate benefit. Over the last several decades, California’s criminal code has grown to more than 5,000 provisions covering every almost conceivable form of human misbehavior. During the same period, our jail and prison populations have exploded. Before we keep going down this road, I think we should pause and reflect how our system of criminal justice could be made more human, more just and more cost-effective.”
This is the message no Nevada governor has ever issued. Since the 1960s — when state politicians used the civil rights movement to claim that law and order was breaking down — Nevada’s lawmakers have been creating new crimes, increasing penalties for existing crimes, limiting parole, and “enhancing” penalties for various reasons, such as crimes based on hate or committed against senior citizens.
The result has been that Nevada’s prison costs have normally been at or near the highest in the nation. During one period the state was building a prison a year. The U.S. Justice Department once issued a report that put Nevada taxpayers in the three most heavily burdened in the nation for prison expenses.
When he was a member of the Nevada Supreme Court, Charles Springer told me this state had the highest incarceration rate on the planet. That would have meant higher than, say, the Soviet Union, China, South Africa (then still an apartheid state) or Iran.
And Washoe County District Attorney Mills Lane once told me of an anti-crime bill that fit Jerry Brown’s description — a measure that outlawed something that was already covered by existing law.
Nevada politicians love to run for sheriff, promising to “get tough.” Every policymaker in the state knows the cost is high, but they are unwilling to get on the wrong side of “law and order.” And no leader has been enough of a leader to speak up.
No single piece of legislation was all that expensive. It was the cumulative cost of all these bills passed every time the legislature met that was the problem. And anti-crime bills are directional. It goes only one way. Once an anti-crime bill is passed it is virtually never repealed.
There was one individual piece of legislation that was pretty expensive all by itself. Senate Bill 9 of the 1979 legislature probably cost taxpayers millions. It increased the penalties for dozens of crimes and was so sweeping that lawmakers accidentally increased the already high penalty for marijuana possession without intending to do so.
In the 1980s, two legislators finally did something about the problem. When Democrat Bob Sader became chair of the Assembly Judiciary Committee and Republican Sue Wagner became chair of the Senate Judiciary Committee, they agreed on joint action to curb the problem. They held all the anti-crime bills instead of holding hearings for them one at a time. Then they had staff do a cumulative fiscal analysis of the cost of all the bills. It became much more difficult to hide the cost of running for sheriff. At the same time, Sader and Wagner examined lower cost prison alternatives like work camps.
Because of their efforts, fewer bills passed and, though prison populations did not decline, the rate of increase of prison costs was lower.
“We have just decreased the increase,” Sader said in January 1989. “The net result … was to avoid having to construct one medium-security prison.”
Unfortunately, there is little institutional memory in Nevada. When Sader and Wagner departed, no one told their replacements about the procedure and everything went back to the old way of doing things. And prison costs started rising again.
In 1999, I asked Senate Judiciary chair Mark James about it. He had never heard of the practice and said considering the accumulative financial effect of a session’s anti-crime measures was unnecessary.
Of course, what made it happen for Sader and Wagner was that the two political parties could work together. That, too, has passed.
Dennis Myers is a veteran Nevada journalist.