The Las Vegas D.A. Is Seeking The Death Penalty More Than Nearly Any Other

In August 2019, Paul Browning was released from prison after spending 33 years on Nevada’s death row for a murder he didn’t commit. Browning was prosecuted and convicted in a Las Vegas court by Clark County’s district attorney in 1986, in a trial that a federal appeals court later said was tainted by “disturbing prosecutorial misconduct.” After a court ordered a new sentencing hearing in 2004, Browning was resentenced to death. The capital sentence was upheld on appeal. 

But in 2017, a federal appeals court ordered a new trial for Browning on the grounds that the prosecution had withheld evidence during his original trial in 1986. In March 2019, a Clark County judge dismissed the case against Browning. The Clark County district attorney’s office—led by Steven Wolfson—appealed the dismissal, but a judge ordered Browning released that summer while the prosecution’s appeal was pending. The Nevada Supreme Court subsequently upheld the dismissal of the charges.

Although Browning’s conviction, death sentence, and decades-long incarceration may be a particularly egregious example of the results of overaggressive prosecution, Nevada has long been one of the top states imposing death sentences. And Clark County, which is responsible for the majority of death penalties imposed in the state, is also “one of the most active death-sentencing counties in the United States,” according to the American Bar Association. The ABA has also noted that Clark County possesses the dubious distinction of having a “particularly high rate of convictions and death sentences being overturned as a result of prosecutorial misconduct.”

This status quo is motivating activists and legislators who are seeking to abolish the death penalty in Nevada. But even as such prosecutions have declined nationwide, Wolfson plays a significant role in continuing to propagate the punishment. Wolfson seeks the sentence at a rate that makes him one of the country’s most aggressive death penalty-seeking district attorneys. He did not respond to The Appeal’s request for comment.

“We’ve seen movements across the country and district attorney’s offices reforming and moving in more progressive directions. Unfortunately, that’s not the case we’re seeing right now in Clark County,” Mark Bettencourt, project director of Nevada Coalition Against the Death Penalty, told The Appeal.

Clark County is one of only four counties to have had, on average, more than one death sentence each year since 2012, according to data from the NAACP Legal Defense & Educational Fund and analyzed by the Death Penalty Information Center.

Wolfson, who is a Democrat and opposes repeal of the death penalty, says his office’s practices are different from his predecessors’. 

“I have filed far fewer death notices than other Clark County district attorneys,” he said in testimony in March to the legislature, which was considering Assembly Bill 395, a bill that would have abolished the state’s death penalty. The Assembly passed the bill last month, but it died in the Senate last week after Governor Steve Sisolak said he didn’t support abolition. “We don’t make these decisions lightly,” he added, saying that seeking a death sentence is reserved for the “worst of the worst.” 

But Wolfson’s office has filed 91 notices of intent to seek a death sentence since he took over in 2012, according to data provided to The Appeal by Clark County deputy public defender Scott Coffee, who has represented clients facing the death penalty. 

Even while the bill to abolish the death penalty was making its way through the legislative process, Wolfson’s office filed a motion to set an execution date for Zane Michael Floyd, who was convicted of four counts of first-degree murder in 2000. Floyd would be the first person executed in Nevada since 2006—six years before Wolfson became DA. 

Multiple public defenders and advocates who spoke with The Appeal said Wolfson’s recent testimony to the state legislature—which included him saying “I strongly believe that the death penalty should be reserved for the very rare and extreme circumstances”—was contradicted by the number of times his office sought the death penalty during his tenure. 

“What Steve Wolfson is saying to the legislature is very different from the way his office actually prosecutes death penalty cases,” said Sarah Hawkins, chief deputy public defender in Clark County and president of Nevada Attorneys for Criminal Justice. “He [implies it’s used] sparingly when in fact our county is fifth in the nation in terms of seeking the death penalty.”   

“The state has very broad discretion in whether they seek the death penalty or not,” criminal defense attorney Lisa Rasmussen said, noting that the choice to file a notice of intent to seek a death sentence is a unilateral decision by the DA. “I don’t see that they’re using that discretion. I don’t see that they’ve backed off and decided not to seek it except in extraordinarily rare circumstances,” she added. 

The threat of the death penalty in Clark County is also used disproportionately against Black defendants. Although only 13 percent of Clark County’s population is Black, over 50 percent of the individuals against whom Wolfson has signaled intent to seek the death penalty were Black, according to data provided by Coffee. “This is a system that has been built in a discriminatory nature in Nevada from time immemorial,” Bettencourt said when asked about racial disparities. 

Multiple criminal defense attorneys said the Clark County DA uses the death penalty to get defendants to plead guilty to crimes that carry lengthy sentences.

Wolfson’s office is often willing to strike plea deals after filing notices of intent to seek the death penalty—a fact that belies his claim that seeking the death penalty is reserved for the “worst of the worst,” Rasmussen said. 

Rasmussen has often been able to negotiate plea deals setting limited terms of imprisonment, even after Wolfson signaled intent to seek a death sentence, she said. “Some cases were clearly not death penalty [worthy]. They should never have been death penalty cases to begin with,” she added. “One of them I negotiated for a six- to 15-year sentence—why was that a death penalty case?”

The death penalty “is used to drive deals,” Coffee said. “If they’re filing death and if it is a moral imperative that there’s death … then why are they negotiating?”

Because of the death penalty’s use as a tool to drive sentencing, its abolition “would fundamentally change the way that I handle cases,” Coffee said. 

Without the threat of death, Coffee said he could focus more on the actual matter of attempting to prove his clients’ innocence, rather than only avoiding the worst possible sentence. More people may also exercise their constitutional right to a trial, according to Coffee. “The death penalty terrifies defendants,” he said. 

If Nevada were to abolish the death penalty, it would also change how Wolfson and his team operate.

“They might have to go to trial on those cases because they might not have the leverage” to coerce a plea, Coffee said. “They also wouldn’t have the leverage to occasionally have innocent people plead guilty.”