by Dayvid Figler

Criminal cases are a staple of spot news reporting. The mug shot is even better than the 3-inch type headline to draw eyes (and clicks). Of course, the arrest comes well before the conviction and in an American court of law, people are still innocent until proven guilty-ish.

Which is why it’s always (but really never) a surprise to see the outpouring of vitriol towards any criminally accused person when the granting of bail comes up -- and equal exultation when bail is denied or priced in the millions. Especially for people charged with crimes involving sex, blood or politics (the hat trick of salacious prosecution game play).

Search “Bail Vegas” in the news filter of your Internet engine and all the hits come chugging out. Here’s just a sampling of one recent week on three different cases --

“Man held without bail in crash that killed teen driver in Las Vegas” (RJ- 2/13/17)

“Bail raised for molestation suspect after family airs concerns” (LV Sun 2/13/17)

“$1.5M bail set for Arbor View athletic director facing child porn charges” (RJ – 2/14/17)

More recently, a court-ordered public guardian was issued a “no bail” arrest warrant on over 270 fraud and related charges.

Seems like “bail” is a thing these days where the more we hate the mug shot, the more we clamor for the face to remain in jail from the onset.  But is that what bail is all about? Short answer – uh, no.

There’s a fun Nye county case from 1921 where a handful of bootleggers challenged their “excessive bail” of $3,000 each while lingering in jail, awaiting their day in front of the justice of the peace.  The Nevada Supreme Court – perhaps thirsty but more likely deciding that day to honor the Constitution of the United States agreed with the bootleggers. The Court held:

There are those who deem it proper to fix the bonds of all persons charged with crime in a sum so great as to preclude its being given, but it was the obviation of such a consequence that prompted the provision in our Constitution against excessive bail. In other words, the idea was that the punishment, if there is to be any, should follow conviction, and not both precede and follow it, or be inflicted in spite of possible acquittal.

Forget about the mug shot, the shocking headline, the quick to act Court of Public Opinion. The deal here in America is that you are legitimately shrouded in innocence until the jury checks the box that says otherwise. This is a cornerstone principle, and bail is at the heart of it.

Not to say that bail is without limitation or control. Any judge setting the number is charged with taking two fundamental concepts to heart: (1) is this person likely to perpetrate more of the alleged misconduct if let out of jail and (2) is this person likely to run from justice if let out of jail.

In the end, whatever the amount, everyone (except those facing the death penalty) are entitled to reasonable bail. That’s EVERYONE. And REASONABLE at that.

Now, to the extent that bail is synonymous with money, it should be no surprise that indigent people are stuck in custody for even the most minor offenses far more than those with access to cash. And it doesn’t have to always be cash. One can enlist (for a healthy, non-refundable fee and a sufficient collateral) a bail bondsman to post a guarantee of the bail amount. This has made the issuance of high bails (and the arrest of more and more people) a windfall for the bail bonds industry (a story for another day). Still, the idea remains that the higher the bail, the more the person will not run or misbehave for fear of forfeiting the cash (or having a bounty hunter on their trail in addition to every law enforcement officer nationwide with a computer screen). The logic of that, of course, is debatable, but it is a thing.

Still, people are entitled to a chance in most every case to not be held while the case is working its way through the system. Somewhere along the way, however, this precept has been perverted to suggest that the money amount should be commensurate with the seriousness of the accusation:  that if you are accused of doing something bad, you must be proportionally (and  inherently) ready to run, so the bail is be astronomical.

If you have ties to a community and a minimal history of contact with law enforcement, The Founders decided that you should be out. But people these days get so upset, don’t they? And judges are elected by those people (at least in Nevada), aren’t they? And, well, an accused person probably will be convicted so why not give, say, a 54-year old school district employee a bail that is more than, say, 20 times his current annual salary? And who cares anyway about the plight of a mug shot?

We all should care. Especially as the issue of bail affects the highest profile DUI cases just as much as the petty thief who took a pack of Bubblelicious from the neighborhood Walgreens. We should care because even where the proof is evident and the possibility of conviction strong, bail is not punishment. There is a proper sequence of events. Punishment comes at the end of that sequence for the sanctity of the entire system.

Forgive me for burying the lede, and here it is:

That aforementioned sanctity has given rise to a pilot-program that tests whether defendants can be released without paying bail. It has, not surprisingly, flown virtually under the radar with courts in different jurisdictions throughout Nevada. The idea is to test out a risk-assessment tool that doesn’t fall pressure to public outrage, racial bias, indigent status, emotional victims or anything other than the Constitutional guarantees at the heart of justice. There has been virtually no reporting on this sea-change pilot program though it has been operating since September 2016 in a handful of Las Vegas courtrooms. The approach, however, makes sense.

Nevada Supreme Court Justice Jim Hardesty (a champion of this alternative approach) has been singing the praises of the new system. "By and large, everyone has been very impressed with the process so far," Hardesty told the Nevada Appeal in December. "It has really been more successful I think than what we had anticipated….Clark County also reports no cases where a defendant released without requiring bail has failed to show up at this point.”

Indeed, the case where the alleged molester’s bail was raised from $50,000 to $300,000 dollars reported in the Las Vegas Sun on February 13, 2017 (“Bail raised for molestation suspect after family airs concerns”) was a part of this pilot program. The reporter mentions the “pre-trial” risk assessment, but doesn’t give the context of the program or its goals.

The $50,000 dollar figure was the objective standard. The Las Vegas Sun reported that “it wasn't immediately clear what led to Judge Stefany Miley's decision” to increase the bail to $300,000 after the victims asked to abandon the objective standard (a discretion afforded under the program).

But given the misunderstanding of bail and the prejudices inherent in the system, it’s probably not hard to speculate or expect the Constitution to be more than a mere afterthought in the world of clicks, anger and votes.

Dayvid Figler is a criminal defense attorney, former Municipal Court judge and national commentator on all things Las Vegas.

Featured Photo “Neon Grumpy's Bail Bonds” by PunkToad is licensed under CC BY 2.0