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Making the Criminal Justice System Whole: Nevada Supreme Court Review of Criminal SentencesBy Hon. Robert E. Rose and Amy A. Johnson Criminal law practitioners, defense and prosecution alike, would consider it peculiar if the Nevada Supreme Court refused to review district court decisions on, for example, criminal defendants' motions to suppress, Batson v. Kentucky, 476 U.S. 79 (1986) challenges, or motions for mistrials or new trials based on prosecutorial misconduct. Such a refusal of appellate review in these instances could not stand, much less be continuously avowed in the Court's jurisprudence. But this is the situation with the district courts' sentencing determinations because the Court refuses to review criminal sentences for excessiveness. This results in no review of criminal sentences in Nevada, other than the nearly impossible to meet Eighth Amendment cruel and unusual punishment review. Although the vast majority of sentences in Nevada are properly assessed and within an acceptable punishment range, there is no process in place to guard against an excessive sentence and to correct it when it occurs. This is a grave error, for the most important aspect of a criminal proceeding is the defendant's sentence. This article addresses this error, and its implications, and proposes a solution. Mandatory minimums, statutory maximums, and constrained yet unbridled discretion. A modern system of criminal justice should do two things: hold people responsible for their criminal acts and make the punishment fit the crime. Nevada's law enforcement officers and prosecutors do an excellent job of discharging the first objective. However, the collective efforts to make the punishment fit the crime are from time-to-time less successful, primarily because of Nevada's current sentencing scheme and the lack of appellate review of criminal sentences. In Nevada, the Legislature statutorily provides the mandatory minimum sentence that must be imposed and the maximum sentence that can be imposed on a criminal defendant for a particular crime. NRS chs. 193-207. The mandatory minimum is exactly what it states—the prisoner must do every day of that time, with no good time credits or work credits reducing the minimum. The maximum is, again, exactly what it states—the maximum punishment the district court can impose. Although it appears at first blush that this statutory scheme would sufficiently eliminate any concern over excessive sentences, this method actually creates the potential for excessive sentences. First, mandatory minimum sentences divest the district courts of all discretion by requiring them to impose, at the least, the statutory minimum sentence. An offender's youth, mental health, intelligence, or other extenuating factors cannot be considered to lower the mandatory minimum. And, the mandatory minimums are automatically doubled every time an object that could cause harm is used in the commission of the crime. NRS 193.165. Conceivably, then, the only murder where the deadly weapon enhancement is inapplicable is murder by strangulation or pushing someone to his or her death. Therefore, while murder's mandatory minimum is twenty actual years, the usual sentence for first-degree murder—life with the possibility of parole—translates to forty actual years because of Nevada's extremely broad deadly weapon enhancement. The practical result is that the twenty-year mandatory minimum and the added twenty-year deadly weapon enhancement effectively collapses the difference between life with and life without parole. (The Legislature is, however, considering revising Nevada's abrasive deadly weapon enhancement, in addition to other criminal statutes, in the upcoming 2007 session. The Bill Draft Requests to watch are: 14-148, 14-152, 15-151, 16-149, and 16-150.) Second, aside from having to impose the mandatory minimum sentence, the districts courts then have nearly unbridled discretion when actually selecting the defendant's sentence. Under the statutes, the district court is free to impose the maximum sentence, even when the maximum sentence may be unwarranted under the facts. And, the greatest disparity occurs when a defendant pleads to or is convicted of more than one count of a particular offense or more than one offense. In those situations, the district courts must impose the mandatory minimum sentence on each count or offense, but has the unbridled discretion to run the sentences concurrently or consecutively. This can result in an enormous total sentence because the mandatory minimums on all sentences run consecutively must be served one after the other. Thus, appellate review of sentences for excessiveness is a necessary and important part of the criminal justice system, but a part that, unfortunately, Nevada criminal defendants are not provided. The problem illustrated.When reviewing sentences, the Nevada Supreme Court generally states: The Eighth Amendment of the United States Constitution forbids [an] extreme sentence[] that [is] grossly disproportionate to the crime. Despite its harshness, [a] sentence within the statutory limits is not cruel and unusual punishment unless the statute fixing punishment is unconstitutional or the sentence is unreasonably disproportionate to the offense as to shock the conscience. The problem with this limited method of review for Eighth Amendment violations, rather than also conducting a review for an abuse of discretion and a sentence's general propriety, is that the Eighth Amendment standard is nearly impossible to meet because a sentence imposed within statutory limits passes constitutional muster. But, just because the defendant's "punishment is within the statutory limit, this does not mean that his sentence is automatically just and not excessive." Id. Two Nevada cases best exemplify this point-Houk v. State, 103 Nev. 659, 747 P.2d 1376 (1987), and Sims v. State, 107 Nev. 438, 814 P.2d 63 (1991). In Houk, Dolores Houk was sentenced to five consecutive ten-year sentences-or fifty years-for uttering five bad checks. She argued on appeal that her sentence violated the Eighth Amendment's prohibition against cruel and unusual punishment. The Court stated that, generally, sentences that fall within the statutory limits are not cruel and unusual punishment. Therefore, because Houk's sentence fell within the statutory limits, Houk's sentence did not violate the Eighth Amendment, and the Court upheld the district court's sentencing determination. Houk eventually received relief from the Pardons Board. In Sims, Anthony Sims was adjudicated a habitual criminal and sentenced to life in prison without the possibility of parole for the triggering offense of stealing a purse and a wallet containing $476. In Sims' criminal history, he had only been convicted of one violent crime, an armed robbery over sixteen years before the triggering offense. On appeal, Sims argued that his sentence was disproportionate to his crime and criminal history, which therefore amounted to cruel and unusual punishment that violated the Eighth Amendment. The Court stated that it "may very well have imposed a different, more lenient sentence" than the district court did, but the Court nevertheless concluded that because Sims' sentence was within legislative parameters, it did not violate the Eighth Amendment. Specifically, the Court said, "Despite what may appear to be an unduly harsh sentence based upon the record before us, the sentence was lawful and presumably consonant with the judge's perceptions of Sims' just desserts and the punitive attitude of the community in which the judge serves." Sims, 107 Nev. at 440. In dissent, Justice Rose observed, "The majority's failure [to review and modify Sims' excessive sentence] is an abdication of [the Court's] responsibility and a refusal to correct an injustice when brought to [the Court's] attention." Id. at 442 (Rose, J., dissenting). Nevada's excessive sentences have not gone unnoticed. In Ewing v. California, 538 U.S. 11 (2003), the United States Supreme Court held that Ewing's sentence, which was imposed under California's three strikes law, did not violate the Eighth Amendment's prohibition against cruel and unusual punishment. In his dissenting opinion, Justice Breyer compared Ewing's sentence to sentences imposed in other states and concluded that only one other sentence was as harsh as Ewing's sentence—the sentence imposed in Sims. Justice Breyer described Sims as being "a single instance of a similar sentence imposed outside the context of California's three strikes law, out of a prison population now approaching two million individuals." Ewing, 538 U.S. at 47. As Ewing and many Nevada cases demonstrate, the Eighth Amendment cruel and unusual punishment review is a very high, exacting standard to meet. And Justice Breyer's account that, out of two million prisoners, only Sims received a sentence as harsh as Ewing's, demonstrates the necessity, in Nevada, for appellate sentencing review for more than Eighth Amendment violations. Pardons BoardSome may question whether reform is necessary or whether the Pardons Board inherently remedies an excessive sentence, as with Dolores Houk. The short answer is "no." The Pardons Board is not the proper or even an effective vehicle to review all sentences claimed to be excessive. The Pardons Board is a constitutional creation, consisting of the Nevada Supreme Court Justices, the Attorney General, and the Governor. It is an executive board, which dispenses clemency based on a majority vote. By its very makeup, it is political. And, relief can only be considered if a prisoner is placed on the Pardons Board agenda, which translates into approximately twenty prisoners being considered per year. Considering that Nevada's prison population is approaching 13,000, the odds of placement on the Pardon's Board agenda are not in the prisoner's favor. Further, the Pardons Board is normally unwilling to consider a sentence until the defendant has served substantial time on the sentence—usually twenty years. And the real kicker is that, even if a prisoner secures a place on the agenda, the Governor must be in the majority for relief to be granted. Additionally, when the truth-in-sentencing provisions were adopted in 1995, the Pardons Board was divested of authority to commute sentences of death or life without the possibility of parole. Thus, for defendants convicted after 1995, death means death and life without parole means life without parole. NRS 213.085. Accordingly, had Sims been convicted in 1995, he would have spent the rest of his natural life in prison for the triggering offense of a $476 property crime. SolutionSo how should this calamity be solved? A sentence review commission could be created, which would review all criminal sentences for excessiveness and uniformity. Some states have this, and it is a viable option. The Legislature could adopt binding sentencing guidelines to ensure that sentencing parameters are better defined. However, in light of recent United States Supreme Court decisions, binding sentencing guidelines are likely to be struck down as unconstitutional, and the Legislature would face a Herculean task to create binding guidelines that could pass constitutional scrutiny. Also, the Legislature could adopt non-binding guidelines. However, for non-binding guidelines to work, it is necessary that the district courts be accountable to a reviewing body for their deviations from the guidelines. Finally, the Court could review sentences for excessiveness or abnormality, as is done by many appellate courts. This solution is the easiest one to implement and the least expensive. Ultimately, however, the best solution is a combination of the above: legislative reform and Nevada Supreme Court involvement. Legislative revision of the current sentencing scheme and the adoption of non-binding sentencing guidelines, coupled with Nevada Supreme Court review of excessive sentences would help ensure that Nevada sentences are uniform and proportionate to the crime committed. In doing so, Nevada's criminal justice system would become whole because it would be discharging both of its objectives: holding people responsible for their crimes and ensuring that their punishments fit their crimes. ConclusionWe are not against mandatory minimum sentences. We are not against sentences that are severe when warranted. We are not against district court judges having discretion when sentencing. What we are against are mandatory minimum sentences that do not give the district court any discretion to depart from them in unusual situations, the district courts' unbridled discretion to assess the maximum sentences and run the sentences consecutively and the Nevada Supreme Court's refusal to review this exercise of discretion as it reviews every other exercise of discretion. Until this situation is corrected, Nevada will continue to have a system where the most important part of a criminal proceeding, the sentence, will not be reviewed for excessiveness by anyone once imposed. Senior Justice Robert E. (Bob) Rose was elected to the Nevada Supreme Court in 1988 and was reelected in 1994 and in 2000. He retired from the Court in December 2006, upon expiration of his third six-year term. During his tenure on the Court, he served three times as its Chief Justice—1993-94, 1999-2000, and in 2006. While serving as Chief Justice, he built a reputation in the legal community and on the Court as a reformer. Senior Justice Rose promoted the creation of the Court's blue ribbon Judicial Assessment Commission to conduct a broad study of the judicial system and recommend improvements and the Nevada Jury Improvement Commission. Senior Justice Rose also pushed the Supreme Court to adopt rules that require all courts to keep reliable uniform statistics to help better manage their pending caseloads and account to the public. Additionally, he implemented a major expansion of the Senior Judge program and launched the Article 6 Commission. Prior to serving as a Nevada Supreme Court justice, Senior Justice Rose served two years as an Eighth Judicial District Court judge, four years as Nevada's Lieutenant Governor, and four years as Washoe County's District Attorney. Amy A. Johnson served as Chief Justice Rose's senior law clerk from 2005-2006, and she is currently employed as an attorney with Ballard Spahr Andrews & Ingersoll in Las Vegas. Amy graduated from the William S. Boyd School of Law in 2005. During law school, Amy was a student attorney in the Capital Defense Clinic where she assisted with the guilt and mitigation phases of a capital penalty trial. For her work in the Capital Defense Clinic, Amy was awarded the Clinical Legal Education Association Outstanding Student Award. Amy also served as Nevada Law Editor on the Nevada Law Journal. The Last Line of Defense: The Constitution Protect The Homeless TooBy Allen Lichtenstein and Lee Rowland Recently, suggestions have been made that homeless individuals in our community be forcibly taken into custody to receive the "assistance" they are deemed to need, even if such "help" is done against their wishes. Three separate approaches have been offered for getting the homeless off the streets and into custody where they can be given the assistance they are deemed to need: 1) the criminalization of homelessness; 2) involuntary commitment for mental illness; and 3) arrests for activities that accompany homelessness. All of these approaches are constitutionally problematic. The most direct and straightforward approach is the direct criminalization of homelessness through mechanisms such as vagrancy laws. The origin of the status crime of vagrancy had its roots in Elizabethan England and a desire, during the demise of the feudal system, to prevent the movement of workers to more prosperous areas. Papachristou v. City of Jacksonville, 405 U.S. 156, 161-162 (1972). While arresting homeless people was a once popular option, it has long been declared unconstitutional by the courts. In Parker v. Municipal Judge of the City of Las Vegas, 83 Nev. 214, 215, 427 P.2d 642, 643 (1967), the Nevada Supreme Court ruled that homelessness is not a crime and cannot be criminalized, thus voiding the City of Las Vegas's "disorderly persons" ordinance. See also, Cline v. Clark County Liquor and Gaming Licensing Bd., 91 Nev. 303, 306, 535 P.2d 783, 785 (1975). State and local vagrancy and loitering laws were struck down in State v. Richard, 108 Nev. 626, 628, 836 P.2d 622, 223 (1992), where the Court noted that "[c]riminal statutes are designed to punish persons because they have committed specific prohibited acts." Under vagrancy laws, individuals are subject to arrest even though they are not accused of committing any specific prohibited act, but are vulnerable to prosecution based solely on their status. Making the status of poverty a crime cannot be constitutionally accomplished. Parker, 83 Nev. at 215, 427 P.2d at 643. Quoting Justice Jackson's concurrence in Edwards v. People of State of California, 314 U.S. 160, 184-185 (1941) (Jackson, J., concurring), the Parker Court noted that "[i]ndigence is neither a source of rights or a basis for denying them. The mere state of being without funds is a neutral fact - constitutionally an irrelevance, like race, creed, or color." Parker, 83 Nev. at 215, 427 P.2d at 643. In City of Reno v. Second Judicial Dist. Court, the Nevada Supreme Court stated that to punish someone for their status rather than their actions "offends one's sense of fundamental fairness and does not square with the constitutional safeguards of life, liberty and property." 83 Nev. 201, 205 427 P.2d 4, 7 (1967). While homeless individuals, like everyone else, may be arrested and prosecuted if they engage in criminal activity, a person's homeless status cannot substitute for any of the elements needed to constitute a crime. See Dinitz v. Christensen, 94 Nev. 230, 232-233, 577 P.2d 873, 875 (1978). Thus, while certain members of the community might view the homeless as unsightly and undesirable, poor and homeless individuals, like all other people, cannot be arrested without having committed some criminal act - at least not without violating their basic constitutional rights. A second approach to "getting the homeless off the streets" is to use a civil rather than criminal commitment process. Many homeless people are believed to have mental illness or substance abuse issues. Some suggest that they can be committed for therapeutic rather than criminal justice purposes. This approach, too, runs afoul of constitutional standards. Clearly, homelessness cannot be equated with mental illness. Although there are mentally ill persons among the homeless, as there are among the general population, homelessness is no more a disease than it is a crime. Incarceration in a psychiatric facility is a substantial impairment of one's liberty. Humphrey v. Cady, 405 U.S. 504, 509 (1972). In that regard, it is similar to criminal incarceration. O'Connor v. Donaldson, 422 U.S. 563, 580 (1975). In Vitek v. Jones, The Supreme Court stated that [t]he loss of liberty produced by an involuntary commitment is more than a loss of freedom from confinement. It is indisputable that commitment to a mental hospital 'can engender adverse social consequences to the individual' and that "[w]hether we label this phenomena 'stigma' or choose to call it something else . . . we recognize that it can occur and that it can have a very significant impact on the individual. 445 U.S. 480, 492 (1980), quoting Addington v. Texas, 441 U.S. 418, 425-426 (1979). Unless an individual is a danger to himself or others, there is no constitutional justification for confinement for involuntary treatment. O'Connor, 422 U.S. at 570. A determination that a person is mentally ill is insufficient, by itself, to justify commitment against that person's will. Id. at 575. There is no constitutional basis for involuntarily confining people if they pose no danger and are able to live safely in freedom. Id. While any person, homeless or not, who is a danger to him or herself can be involuntarily committed, this approach cannot be used to involuntarily lock up non-dangerous homeless people - even those with certain mental illnesses. A third, and in some ways more insidious, method of placing homeless individuals into custody is to arrest homeless people for minor victimless offenses that they are forced to commit because of their status and situation. Some courts have found that arresting individuals for activities such as sleeping on the sidewalk when there are no shelter spaces available is a violation of the Eighth and Fourteenth Amendments. See Jones v. City of Los Angeles, 444 F.3d 1118, 1132 (9th Cir. 2006); Pottinger v.City of Miami, 810 F.Supp. 1551, 1565 (S.D.Fla. 1992). Other courts have allowed people who have been arrested under such circumstances to assert a necessity defense. See In re Eichorn, 81 Cal.Rptr.2d 535, 540 (Ct. App. 1998). Necessity occurs when a person acts to prevent an imminent harm which no available options could similarly prevent. See United States v. Dorrell, 758 F.2d 427, 430-31 (9th Cir. 1985). Moreover, other activities that are lawful cannot be criminalized for poor and homeless people and allowed for others. For example, the "right to loiter" is well established. City of Chicago v. Morales, 527 U.S. 41, 53-54 (1999); Papachristou, 405 U.S. at 164. Individuals' right to hang out on the streets, sidewalks and parks does not depend on their economic status. See Morales, 527 U.S. at 54, n. 20. Recently, the United States District Court struck down a City of Las Vegas ordinance that made it illegal to provide food to an indigent person in a public park. Sacco v. City of Las Vegas, Docket No. 2:06-cv-0714-RCJ-LRL (D. Nev. Nov. 20, 2006) (granting preliminary injunction). While indigent people do not generally comprise a protected class requiring heightened constitutional scrutiny, the Court found that the invidious distinction made between people based solely on their economic status could not withstand even the rational basis test, that is, such a distinction was not rationally related to any legitimate governmental interest. Id. Homeless people cannot be removed from our midst by unequal application of the law, and such unequal application not only offends constitutional principles but the whole concept of basic fairness. One of the most profound aspects of our constitution is how it protects the rights of individuals against the power of overreaching government and of hostile majorities. Our community and communities all over the country are faced with a growing population of homeless individuals and families. Some wish to deal with the problem by sweeping it under the rug or by devising legal mechanisms to get rid of or incarcerate homeless people. Certainly the homeless do not have the political power to protect themselves from these efforts. Their protection comes from the United States Constitution. In that regard, the homeless are just like everyone else. Allen Lichtenstein is the General Counsel of the ACLU of Nevada. He maintains a private practice emphasizing constitutional law. Mr. Lichtenstein received his J.D. from the Benjamin Cardozo School of Law in 1990, and a Ph.D. from Florida State University in 1978. Lee Rowland is the Staff Attorney for the ACLU of Nevada, where she works on a host of civil rights issues in the form of both litigation and public education. A 2005 Graduate of Harvard Law School, Lee was the President of Harvard Defenders, the nation's largest student‑run criminal defense program, and technical editor of the Harvard Human Rights Journal. She lives in Las Vegas, where she is also the Secretary of Forgotten Voice, a non‑profit street newspaper devoted to the homeless community of Clark County. |
© Originally published in COMMUNIQUÉ (February, Vol. 28, No. 2), the official journal of the Clark County Bar Association. All rights reserved.