COMMENTARY: Will District Attorney Steve Wolfson be a reformer?

On June 12, Clark County voters decided that incumbent District Attorney Steve Wolfson should serve another term as the county’s chief prosecutor.

This outcome is immensely consequential. Nobody is more powerful in the criminal justice system than district attorneys, who have discretion to decide what crimes to prioritize for prosecution, who should be charged, whether to seek bail as a condition of pretrial release, what sentences to seek and what plea deals to offer.

The Clark County race pitted Mr. Wolfson against former prosecutor and longtime defense attorney Robert Langford. Mr. Langford ran as a reformer who aligned himself with a growing bipartisan movement led by prosecutors who want to fix a broken criminal justice system that is inhumane, inequitable and wasteful and leaves us less safe than we should be.

Like reform-minded prosecutors nationwide, Mr. Langford understood that we imprison far too many people who pose no threat and are disproportionately poor, of color and mentally ill. He recognized that taxpayer money could be spent more wisely on diversionary programs and effective alternatives to incarceration.

Not only does the failure to reform the criminal justice problem result in the enormous cost of maintaining overcrowded prisons and jails, but it also results in the indirect cost of widespread economic and social dislocation that impedes stable employment and destroys the families of prisoners and ex-offenders. District attorneys can be a force for, or an obstacle to, fixing all this.

While claiming in ads and mailers to also be a reformer, Mr. Wolfson declined a number of invitations from community groups to answer tough questions about his record and the issues. That was unsurprising, given the advantages of incumbency and the fact that digging deeply into our failed justice system would have raised legitimate questions about his claim that he has joined the ranks of prosecutors and others who support meaningful reform.

In his ads, Mr. Wolfson touted his creation of a conviction integrity unit funded by a time-limited grant, along with his support for a scaled-down pilot program created by the Judicial Council that tests a tool to assess pretrial release risks. He also emphasized that he established a third grand jury to prosecute violent criminals and a domestic violence unit to punish abusers.

Nobody, including determined reformers, would quibble with any of this, even if the integrity unit operates secretly and has overturned only one reported conviction. The problem is the district attorney failed to acknowledge what other chief prosecutors readily concede — that our justice system is dysfunctional and it is necessary to identify, expose and eradicate the race, class and gender biases that are rampant in it, biases that have been documented in our state by a Nevada Supreme Court Commission on the subject.

Mr. Wolfson’s silence on these and a raft of related issues is unfortunate, because various actions on the part of the DA’s office point to resistance to much-needed change in favor of a timeworn, knee-jerk “tough on crime” approach rather than creative, data-driven “smart on crime” approaches.

A partial recounting of the record that signals an unwillingness to jettison practices that ill serve those they adversely affect includes the district attorney’s refusal to systematically vacate minor marijuana convictions; the use of field drug tests that are unreliable as the basis for filing charges and leveraging plea deals; hiding witness payments from defense attorneys; the failure to collect and analyze data on the race and national origin of various stakeholders playing key roles in a process rife with bias; and the refusal to act on the data gathered in the pilot project his ads touted that strongly supports abolishing a bail system which allows wealthy defendants to remain free while the poor who pose no threat must often stay in jail simply because they lack the money to get out.

No one should question Mr. Wolfson’s decency, commitment to service or desire to do what is best for our town. But when he insisted in ads that his office files charges based on “crimes committed,” not the “color of the skin” of the accused, and complains that witnesses were not paid to influence their testimony, the DA missed and obscured the point.

This is a pivotal moment when an increasing number of prosecutors are rejecting the failed mass incarceration model that measures “success” in terms of convictions. They are grappling with the scourge of implicit bias and are intensifying their efforts to right the wrongs visited most often on the mentally ill, the poor and people of color. Clark County residents deserve strong leadership on such matters that implicate core constitutional principles, our pocketbooks and our overall quality of life.

Now that Mr. Wolfson has been re-elected by touting his standing as a reformer, he should make abundantly clear his precise intentions regarding change. Without clarity about what the district attorney stands for and whether he will join fellow prosecutors who embrace real reform, we should expect more of the same from his office rather than a bold vision of transformation. And absent action commensurate with that kind of inspired and exacting vision, we will continue to be saddled with a flawed criminal justice system that fails us practically and offends our constitutional values unless enough of us demand a better way forward.

Franny Forsman is a former federal public defender and former president of the Nevada Bar Association. Gary Peck is a longtime local civil rights advocate and former member of the Nevada Supreme Court Commission on Race, Class and Gender Bias in the Justice System. Both writers served on the Nevada Supreme Court Indigent Defense Commission.