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The United States incarcerates more of its citizens than any other country on the planet.  Yet, it has little to show for it.

Crime rates, rates of recidivism, and overall fairness in the criminal justice system are not vastly better in the United States than in other countries even though we incarcerate vastly more people.  In fact, the racial disparities apparent in our nation’s incarceration rates reflect poorly on this country.

Notwithstanding the current U.S. Attorney General’s deeply out-of-touch, antiquated approach to law enforcement, criminal justice scholars and public officials alike now realize that our decades-long experiment in mass incarceration is a complete failure.

In that vein, it was recently reported that Nevada’s incarceration rate is one of the highest in the nation.  Specifically, Nevada has 460 inmates per 100,000 citizens, which is triple the rate of inmates in Maine, the state with the lowest incarceration rate.

Although several months ago, Nevada Department of Corrections officials reported that the prison population has declined slightly, overcrowding in Nevada prisons is still a major problem.  In fact, Nevada prisons remain more than 1,000 inmates above “emergency capacity.”

Nevada’s New Sentencing Commission

As those following Nevada legal affairs already know, the State of Nevada in June 2017 enacted SB451, which created the Nevada Sentencing Commission.  At the signing ceremony, Governor Brian Sandoval stated that the new Nevada Sentencing Commission would make Nevada’s criminal justice system fair and would reduce sentencing inconsistency.

Specifically, the Commission’s charge is to recommend changes to the structure of sentencing so there is consistency among judges in Nevada.  The Commission is expected to propose statutory guidelines based on reasonable offense and offender traits, including the impact of pretrial, sentencing diversion, incarceration, and post-release supervision programs.

In fact, the creation of the Nevada Sentencing Commission mirrors rather closely the mandate given to the United States Sentencing Commission back in 1984, when Congress asked the U.S. Sentencing Commission to fashion what has now become the Federal Sentencing Guidelines.

The Nevada Sentencing Commission and Prison Population

Given the problem of prison overcrowding in Nevada, the creation of the Nevada Sentencing Commission invites the question:  Will the new Commission reduce the prison population? The answer, however, is one that would make any lawyer proud: It depends.

The reason behind the creation of the Nevada Sentencing Commission does not necessarily suggest that prison population reduction is a primary goal.  The mission of the Commission is to review Nevada’s criminal statutes to ensure that sentencing and corrections policies are fair, consistent, proportional, and provide opportunity to those convicted.

In short, the Commission’s charge is to ensure that criminal sentences in Nevada (i) fit the crime, and (ii) are fairly applied across the state.  Currently, there is a lack of consistency in the way similar crimes are sentenced throughout the state. Notably, that same problem was a primary driver of the federal government’s push to create the Federal Sentencing Guidelines.

Although the goal of fairness and even-handed justice is a noble one, it does not necessarily follow that Nevada’s prison population will decrease based on the work of the new Commission.

On the other hand, it is possible that, as the new Commission does its work, inconsistencies and anomalies in the enforcement of certain statutes will result in fewer long prison sentences.  For example, the crime of Burglary in Nevada covered minor shoplifting crimes because of the vague wording of the statute. Accordingly, the most minor of offenses led to a felony conviction for Burglary.  Fortunately, the Burglary statute was amended in 2013 to ameliorate the problem.

If the Commission recommends changes that eliminate the type of problem present with the old Burglary statute, then the prison population may decrease as a tangential benefit.

Experience From Other States

Upon reviewing success stories in other states, it appears that factors other than the existence of a state sentencing commission served as the catalyst for reducing prison populations.

New Jersey

New Jersey leads the nation in prison population reduction.  Since 1999, when New Jersey’s prison population was at its peak, the number of inmates in the Garden State has dropped more than 33 percent.  In fact, just from 2013 to 2017, the number of those incarcerated in New Jersey went down over 15 percent.

Those encouraging numbers in New Jersey were not the result of New Jersey’s Sentencing Commission, which the previous governor ignored during the last eight years.  Rather, the drop can be attributed to the creation of drug courts that focus on diverting people from prison, and changes to the parole system that discourage putting people behind bars for minor parole violations.

Connecticut

As of December 2017, the inmate population reached a 23-year low.  The reason for the decrease, as with New Jersey, had little to do with Connecticut’s Sentencing Commission.  Rather, efforts to divert non-violent offenders from prison, and an overall decrease in crime by youthful offenders has lead to the historic prison population drop.

Illinois

The State of Illinois had a 30 percent drop in inmates between 2007 and 2015 due to a number of factors.  The primary factor was keeping low-level offenders from entering prison in the first place. In addition to diversion programs for low-level offenders and minor parole violators, Illinois learned through research that if people are not detained pre-trial, their chances of going to prison were less.  Accordingly, pre-trial detention was increasingly reserved for only serious violent offenders. While there are many facets to why Illinois cut its prison population, the creation of a sentencing commission similar to Nevada’s Commission was not among them.

In sum, the mission of the new Nevada Sentencing Commission does not directly touch upon decreasing the prison population in the state.  Therefore, it would be overstating to say that the Commission will have a substantive impact on the prison overcrowding problem. That said, it is likely that some Commission recommendations will have a positive, however indirect, impact on prison overcrowding.  We will have to wait and see.

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