Recommendations

Recommendations designed to elevate and strengthen the innovative responses Nevada implemented to address the unprecedented challenges of COVID-19

Below are 12 policy recommendations, based on the findings of this report, which are designed to: 

• Continue and strengthen the positive policies and practices adopted in Nevada during the pandemic, to both improve the delivery of justice and safely prevent unneeded increases incorrections populations when the state returns to more normal operations;

• Reduce the density of the prison and jail environment to better mitigate the spread of airborne viruses and better protect the health of both staff and the incarcerated population, both in the present time and in the event of future health crises; and

• Optimize cooperation, coordination, and transparency among the various components of the public safety, public health, and justice systems, both in the present time and in the event of future health crises.

Recommendation 1: Continue and expand policies implemented to expedite case processing and provide fair remote access to the judicial system. 

As a result of the pandemic, many courts were forced to shut down for a period and make a significant transition toward remote proceedings. Consequently, the age of felony cases and the number of pending cases increased in both Justice Courts and District Courts. Courts across the state have implemented new processes to address the growing backlog of cases and ensure remote access to the judicial system for all who need it. Courts should: 

1. Continue expedited trial sessions – especially in busy District Courts – to work through the existing backlog of serious felony cases.
2. Adopt the use of scheduled settlement conferences implemented in the Eighth and Second Judicial Districts in other jurisdictions.
3. Establish written best practices for remote hearings in state statute or court rule. Such rules should include:
   1. A right to an in-person hearing for any fact-finding proceeding, or any hearing at which a defendant might be sentenced to a term of incarceration.
   2. A right to meaningful pre- and inter-hearing communication between a defendant and their attorney.
4. For rural courts, use local coordinating councils to establish a central location to allow people to more easily appear remotely – for example, a library or other government building.

Recommendation 2: Prioritize criminal justice system resources for people who commit serious crimes by continuing to reduce custodial arrests, admissions, and filings for lower-level conduct, and considering diversion for those with behavioral health needs. 

During the pandemic, arrests and case filings dropped without increased risk to public safety. Stakeholders widely reported that this occurred due to focusing resources on justice system intervention for individuals who were a danger to themselves or others. This mirrors actions taken in other states. Police departments across the county formalized policies to limit in-person responses, as well as enforcement and arrest actions,⁸⁸ and District Attorneys created formal policies to stop prosecuting low-level offenses that did not jeopardize public safety.⁸⁹ Other jurisdictions recommended release for people detained while awaiting trial for nonviolent crimes and expanded the use of pre-filing diversion.⁹⁰ Nevada should continue these practices to not only reduce the population density in prisons and jails during the pandemic, but also to conserve resources for prevention and recidivism reduction services in the community. This may include: 

1. Law enforcement agencies developing formal policies to reduce arrests for lower-level,nonviolent offenses, particularly misdemeanors. This would include continuing to triage responses to calls based on public safety and referring calls that could be best serviced by anon-law enforcement agency.
2. In state statute or local court rule, create more flexibility at the stage where bench warrants are issued for nonappearance. For example, for defendants who may not pose a public safety risk, implement a 48-hour grace period before issuing an arrest warrant.
3. Expand the list of offenses required or presumed to receive citations.
4. Provide additional state and local funding and resources to programs such as CIT, MOST, and FASTT that divert individuals with behavioral health needs from the justice system. This would include creating more crisis centers or similar facilities that can provide treatment,referrals, and other services to stabilize individuals who may be involved in criminal activity driven by behavioral health needs.

Recommendation 3: Continue to develop alternative NDOC programming methods to supplement in-person programming from outside providers to provide flexibility and maintain quality of life in the event of future public health crises. 

As part of NDOC’s firewall strategy to prevent the virus from coming into its facilities, it effectively ceased all in-person programming from outside providers. Many states took similar steps to protect the health and safety of incarcerated individuals and staff. To fill some programming gaps, NDOC developed educational packets distributed these to individuals in custody. NDOC leaders should continue to think innovatively about providing services and strengthen these new initiatives. This may include: 

1. Training NDOC staff or incarcerated individuals to deliver programming services normally provided by outside organizations.
2. Establishing capacity for outside groups to engage in programming via remote calls on tablets. For example, Southern Maine Reentry Center partnered with MIT’s virtual remote learning program to provide classes through zoom instruction.⁹¹
3. Continue to provide credits for those individuals who are engaging in remote programming opportunities or increase time credits to offset any lack of programming in prisons and jails.Other states mobilized “public health emergency credits” and “compliance credits” to address these gaps, similar to the way good time credits can reduce sentence lengths.⁹²

Recommendation 4: Continue shifting toward a more remote supervision model by the Division of Parole and Probation, reserving punitive interventions for individuals who pose a risk to public safety, and employing graduated sanctions and supportive services for lesser conduct, including drug relapse. 

The pandemic necessitated some fundamental changes in NPP supervision practices, many of which gave supervising officers more discretion to work with the specific needs and challenges of their supervisees. Individuals on supervision noted the benefits of this increased flexibility, removing barriers to check-ins such as jobs, transportation, and childcare. Significantly, in step with many of these changed practices, the number of revocations with no new convictions declined during the pandemic. NPP should consider continuing some of these policies that benefitted both their supervisees and public safety. This may include: 

1. Supporting its existing remote supervision model, including online and phone check-ins.
2. Reserving more onerous conditions, like frequent drug testing, for individuals with a demonstrated need for such conditions and expanding eligibility for lower supervision levels to individuals needing less contact requirements. As an example, at the start of COVID-19, Colorado expanded eligibility for low risk/low custody (LRLC) supervision to individuals assessed as medium risk but who demonstrated compliance with supervision for a period of time. LRLC individuals had reduced contact standards and supervision requirements and were more successful on supervision, with lower recidivism rates, than individuals of similar risk but on traditional parole.⁹³
3. Reserving revocation and other punitive interventions for serious misconduct that poses a risk to public safety.
4. Continue responding to lesser setbacks, including drug relapse, using graduated sanctions or supportive services.

Recommendation 5: Ensure that behavioral health treatment providers continue to provide remote care when possible and prioritize in-person care for the most vulnerable. 

Data indicate an increase in the incidence of behavioral health issues since the pandemic began, both in the community and in custodial settings. Interviews with stakeholders across the state cite access to remote telehealth services as a critical tool to combat this problem. Nevada should continue to provide behavioral health services remotely and support these initiatives by: 

1. Investing in an expansion of broadband capacity in rural areas to ensure service accessibility.For example, Minnesota established the Minnesota Office of Broadband Services to achieve its goals of expanding broadband access to remote regions of that state.
2. Ensuring Medicaid covers virtual services in the same capacity as in-person services for individuals in the community. States passed legislation and governors issued executive orders to explicitly state such services would be covered by federal funding under the Medical Assistance Act and Social Security. For example, Nebraska did this through its Telehealth Act of 2021.

Recommendations designed to reduce the density of the prison and jail environment in order to better mitigate the spread of the virus and protect the health of staff and the incarcerated population, both in the present time and in the event of future health crises. 

Recommendation 6: Expand statutory release mechanisms for use both generally and in the event of future health crises. 

Data from both NDOC and CCDC show that releases from prison and jail decreased during the pandemic and continued to decrease at the NDOC during 2021. For jails, there was an average monthly reduction of 21 percent during COVID-19, and prisons had an average monthly drop of 15 percent. Under existing statute, NDOC has some authority to release individuals. Nevada should pursue policies that would safely reduce the prison and jail populations to create space for effective mitigation strategies, both now and in the event of future health crises. These include: 

1. Expanding eligibility for release in the statutes⁹⁴ related to residential confinement, temporary furlough, geriatric release, and medical release.
   1. Expanding residential confinement release to include individuals convicted of Category B offenses and individuals with more than one prior conviction.
   2. Expanding geriatric release to include individuals over the age of 60 instead of 65 and those convicted of a Category C felony or lower.
   3. Expanding medical release to include clear diagnosis instead of a specific period prior to death.
   4. Adding a public health emergency to the definition of “any activity” needing approval from the Director and the Board for temporary furlough release.
2. Create a release mechanism related to public health emergencies for individuals nearing the end of their sentence. For example, New Jersey prisoners with a year or less on their sentences could be released early during the declared public health emergency. The law allowed incarcerated individuals to accrue credits due to COVID-19 and reduce their sentence by up toeight months. This allowed the state prison population to decrease by 40 percent. The releases were allowed only during the state of emergency as declared by the Governor. Initial data analysis found that of the first 2,500 people released in 2020, 9 percent were re-incarcerated within a year, a lower rate than what was found pre-pandemic.⁹⁵

Recommendation 7: Use statewide administrative orders to reduce prison and jail density when public health crises unduly jeopardize the health and safety of corrections staff and incarcerated individuals. 

As part of their COVID-19 mitigation plans, many state and local leaders enacted executive authority to release individuals from prisons and jails. States such as New Jersey, Maryland, and Michigan issued executive orders to release currently incarcerated individuals who were convicted of certain types of offenses.⁹⁶ Others placed parameters on what conduct should constitute a return to custody, such as South Dakota, where an executive order was issued barring individuals from returning to prison for positive drug tests.⁹⁷As noted above, this was not part of Nevada’s COVID-19 response plan. 

1. In the event of future public health emergencies, the state should pursue executive orders to effect a targeted release of people convicted of lower-level offenses, including any of the following: (1) nonviolent or non-sex offenses, (2) Category C felonies or lower, (3) those who are over the age of 65 or particularly medically vulnerable, (4) those within six months of their parole date, or (5) those incarcerated on a technical violation.

Recommendation 8: Fortify the Parole Board’s ability to safely release incarcerated people, both generally and in the event of future public health crises. 

Due to several factors, including but not limited to restrictions on in-person hearings, a declining prison population, and smaller parole eligibility lists due to NDOC housing individuals with more serious offenses, releases via parole declined during the pandemic. Parole Board data show that the Board granted discretionary parole to 35 fewer individuals per month than before COVID-19 (January 2019-February 2020). Concerning mandatory parole, data show the average number of individuals granted mandatory parole each month decreased by over 15 individuals during the pandemic and by an additional 10 fewer people per month since the start of 2021. Parole is the primary mechanism for individuals to be released from prison prior to their sentence expiring and should be utilized to effect safe releases in the event of a future public health crisis. Nevada should explore: 

1. Requiring that the Board evaluate the safety and wellbeing of the individual if they were to remain incarcerated as a factor for parole consideration.
2. Creating a new statutory parole option for “emergency release,” with separate criteria focusing on someone’s health and safety while incarcerated as well as the public safety risks of release.
3. Removing an absence of programming from adverse parole considerations when the absence was entirely caused by a public health emergency or other circumstance outside the control of the incarcerated person.
4. Expand eligibility for in-absentia parole hearings during a public health crisis to ensure more individuals who are not a threat to public safety can be released in circumstances where in-person hearings are not feasible.
5. Expand eligibility for early discharge from parole to those who may not pose an imminent threat to public safety. For instance, Colorado expanded the eligibility for early discharge to those age 60 or older, or to individuals assessed as low- or medium-risk who were convicted of certain classes of offenses and completed at least one year of parole. Analysis of one-year recidivism trends showed lower recidivism for medium-risk individuals who received early discharge compared to those who were mandatorily discharged.⁹⁸

Recommendations designed to optimize cooperation, coordination, and transparency among the various components of the public safety, public health, and justice systems in the present time and in the event of future health crises. 

Recommendation 9: Ensure NDOC’s policies and practices during a crisis function to uphold its mission of protecting the safety and wellbeing of people in custody. 

NDOC has the incredibly challenging task of preventing the spread of COVID-19 in an environment that was incompatible with mitigation strategies. Similar to other correctional institutions across the country, it responded to this unprecedented crisis by establishing a firewall to the outside. This meant limiting individuals entering the facilities from outside as well as restricted movement within the facilities. However, despite these responses, Nevada’s prison system had the third-highest death rate among prison systems nationwide. Moreover, the impact of these policies, which restricted communication between incarcerated individuals and their loved ones and prevented them engaging in in-person programming, has and will continue to have significant consequences on the health and wellbeing of individuals in custody. This is particularly important due to the heightened prevalence of individuals in custody with a behavioral health need requiring additional support and services. To mitigate these adverse effects, NDOC should consider: 

1. Embedding public health professionals in NDOC facilities to leverage the expertise of individuals who understand not only the most effective public health and infection prevention protocols,but also the unique challenges of implementing such protocols in prisons.
2. Increasing alternatives to family visits, such as remote visits through video conference and/orincreased phone time. Moreover, rather than halting family visitation entirely, the Department should consider investing in safety measures such as rapid tests, temperature screenings, and cleaning and disinfecting protocols both prior to and following each family visit.
3. Waiving fees for all phone and video communication if family visitation is halted. For example,the jail in Shelby County, Tennessee, waived all fees for phone calls and established video chats for individuals in their custody.⁹⁹
4. Supplying individuals in custody with envelopes, paper, and stamps to communicate with friends and family through the mail.
5. Developing a system to ensure thorough and regular assessment of individuals’ behavioral health needs alongside physical health and other crisis-related and triage treatment.
6. Establishing peer programs to support individuals in custody through the pandemic. For example, Illinois attempted to combat vaccine hesitancy by using “peer ambassadors” to promote the vaccine among incarcerated individuals. This demonstrated how and why messages from incarcerated people to one another might be received better than promotion from the Illinois Department of Corrections. Also in Illinois, the approach of sending out direct memos to the incarcerated population and then releasing the memos to the public created a sense of transparency.¹⁰⁰

Recommendation 10: Create an oversight body for the entire criminal justice system that is representative of all system actors including agency personnel, justice-involved persons, victims, advocates, and state leaders. 

Under state statute, the Board of Prison Commissioners is authorized to oversee the Department of Corrections. This Board consists of the governor as chairperson, the secretary of state, and the attorney general. In other states and cities, prison oversight boards are typically independent to the executive branch and are comprised of stakeholders from the criminal justice system. This includes states such as Washington, Pennsylvania, and Michigan, and cities such as New York. These oversight boards also have clearly defined duties in statute such as investigating complaints, monitoring compliance, and producing public reports. To prepare for future crises, state leaders should consider making changes to the existing Board of Prison Commissioners or create a new independent oversight body for the entire criminal justice system. That body should: 

1. Consist of directly impacted individuals, victims, agency personnel, advocates, and state leaders.
2. Have clearly outlined authority to investigate complaints, inspect facilities, monitor compliance,and provide information to incarcerated individuals and their families.
3. Have enforcement mechanisms to respond to noncompliance.
4. Hold a public meeting monthly.
5. Issue regular reports to the public on its findings and recommendations.

Recommendation 11: Increase NDOC transparency about its crisis response policies and practices to build trust with the public and those in custody. 

There has historically been a call for more transparency from correctional institutions across the country. A desire for information about prisons and jails has prompted cities and states to create oversight boards, as mentioned above, as well as review agencies and regular reporting requirements. While Nevada does have many reporting requirements for NDOC, none of them require sharing of information relating to their response to the pandemic. The need for information was further exacerbated by the limited access outsiders had to the prisons, particularly family members of individuals in custody. Interviewees shared high levels of anxiety and concern over the wellbeing of people in custody with no mechanism for them to learn about their incarcerated friends and family. The need for information was also expressed by individuals in custody who had little information about the public health emergency that was occurring across the world or the specific changes occurring within the facilities. Nevada should consider ways to increase information sharing between the prison system and the public to continue to build trust and to address a heightened need for information both among the public and those in custody during public health crises. Steps to consider include: 

1. Requiring NDOC to regularly publish pertinent data and information on its website relating to the current pandemic and in the event of future public health crises, such as positivity rates, average daily population, and response plans, among other data points.
2. Create weekly or monthly newsletters to incarcerated individuals updating them on the status of the pandemic and pertinent public health information.
3. Require NDOC to post changed policies and procedures in response to the pandemic within NDOC housing units, as well as an explanation of why such practices are being changed.

Recommendation 12: Focus reentry efforts on transitional housing to support individuals exiting prison and jails during a pandemic. 

Significant barriers to reentry in Nevada long predated the pandemic, but COVID-19 exacerbated pre-existing challenges of reentry support for a person leaving prison or jail. Providers closed down, limited jobs were available, and there was essentially nowhere to go without having a period of quarantine first. Stakeholders repeatedly raised a lack of housing as the primary obstacle to successful reentry during the pandemic. Research indicates that without access to stable and affordable housing, individuals who have recently been released from incarceration have a higher likelihood of returning to prison or jail.¹⁰¹ Beyond the stability that housing provides to employment, mental health, and familial relationships—all factors in reducing the risk of recidivism—having a place to live that is not communal or public allows individuals to stay better protected from the COVID-19 pandemic. In addition, some stakeholders shared concern that individuals might stay incarcerated longer than necessary due to a lack of residential program or housing options. Some states, such as California and Florida, made efforts to lease hotel rooms, buy trailers, or incentivize property owners to ensure that individuals experiencing homelessness, particularly those released from jails and prisons, had housing during the pandemic.^{102 103 104} Nevada should consider: 

1. Increasing the volume of residential reentry services throughout the state through the Emergency Solutions Grant Program, Nevada 211, or other means.
2. Promoting policies and practices aimed at reducing barriers to housing for those with criminal justice involvement, such as providing incentives for property owners to rent to individuals with criminal histories or prioritizing rental assistance to those with behavioral health needs.
3. Reestablishing the presence of NPP staff working within NDOC facilities to optimize reentry plans.
4. Ensuring that individuals who have been approved for release by the Parole Board do not remain in prison because of a lack of housing plans. For example, Georgia has a ReentryPartnership Housing program that pays for short-term housing and food for individuals releasing onto parole.¹⁰⁵
5. Funding more NPP positions embedded in state prisons to facilitate working closely with NDOC staff and streamlining the reentry planning process. This would reduce delays between parole approval and parole release and reduce barriers to releasing individuals from custody.