Take the win.

I think that may be a sports saying (I’m not sporty), but it’s also a common adage in law practice. If you get what you ask for (or don’t get completely denied) just take the win. Even if it’s messy. Be happy. Celebrate. And based on the recent Nevada Supreme Court decision regarding cash bail determinations, there are many lawyers who have every cause to be joyous. 

They worked hard and relentlessly for years simply to get an almost unanimous decision from the highest court in our state to hold that, yes indeed, the sky is blue and the Constitution is important. Almost unanimous in that one justice of the court, while agreeing wholeheartedly with the substance of the declaration of metaphoric blueness of sky and super-goodness of the Constitution, also felt that the issues before them were moot. Basically, this means one justice felt no decision of the court was going to affect the cause of the two named litigants so procedurally it wasn’t appropriate to weigh in. The litigants no longer had a direct interest in their bail because their cases had already come to conclusion. But the court did weigh in — and there has been justified exhilaration coming from all progressive quarters and from end-cash-bail advocates saying things like this is a “sea change” in the way we hold people awaiting trials.

Ever the cynic, and without taking (much) away from the importance of the declarations and procedures highlighted in the decision, I wouldn’t exactly call it a “sea change.”  It’s more like a group of frustrated environmentalists finally got a government official to look out at a giant body of natural water that had been there forever but that no one was seriously acknowledging and say, “yes, this is a sea, and a sea is really vital, so let this be a warning to people who dump their crap in this sea, that’s not good.”

Wading away from sea metaphors for a second, when it comes to bail, judges – especially municipal court judges – have been crapping in the sea — um, onto the heads of poor people for decades without adequate pushback from higher courts. So maybe that is the takeaway here: Judges are on notice that not only will they have to approach cash bail differently, someone may be watching them if they don’t. However (back to cynic mode), the big court decision doesn’t really have a mechanism to supervise or even swiftly correct a judge who still abuses the concept of bail. Indeed, by the time a challenge (when they’re even made) works its way up the jurisdictional chain – the issue will have likely become moot.

So what did this court decision do – or what did it do differently? It’s already been well-reported on, but contextually there is a lot more nuance than the simple holdings of the decision. Nevada Independent reporter Riley Snyder did an excellent (and mind you quick) breakdown of what the court said, so that’s a good start. Riley, who has been following this important case for a long time, reported that the court decision sets forth three procedural steps (and one specific principal) as part of all court proceedings when a district attorney seeks cash bail:

1. A requirement for a “prompt” individualized hearing on custody status, at which the defendant has the right to be represented by an attorney and is also afforded the right to testify or present evidence.”;

2. A requirement that at the hearing, prosecutors must meet a burden of “clear and convincing evidence that no less restrictive alternative will satisfy its interests in ensuring the defendant’s presence and the community’s safety.”;

3. A requirement that the District Court judge “make findings of fact and state its reasons for the bail decision on the record.”; and

4. Judges “must take into consideration the defendant’s financial resources” before assessing bail, calling it “essential to determining the amount of bail that will reasonably ensure his or her appearance and the safety of the community.”

While those are all very important procedural protections, they leave out important caveats that would have made this an even more remarkable shift in the way that bail is considered instead of (somewhat toothless) procedural guidelines still allowing judges (and the district attorneys prompting them) a pathway to figuring out how to keep people in custody.  

Before I explain why this new decision doesn’t really shift the needle that far away from the results we are now seeing, I want to point out one major, somewhat lost concept in the mix. The Nevada Supreme Court did finally weigh in on the remarkably abusive and overused practice of prosecutors taking cases to a grand jury for the purpose of securing an Indictment, then seeking remarkably high bail or no bail at all without even notifying the defendant or counsel for the defendant. I’ve even seen a lower court judge give a bail and then the district attorney go to the grand jury solely to get the bail increased without providing due process — because the law allowed that (to a degree). This high court decision stops that abusive practice for all indictment cases. That is a big deal. Lawyers now have a long-denied right to be heard in these situations.

Despite all the wonderfully pronounced principals and platitudes in the decision, though, lower court judges are still afforded discretion and the ability to weigh factors. Every bad judge in Nevada will continue to lean on an ethereal threat/danger to the community for the non-bail release of an individual, and pay far too much attention to prior failures to appear on traffic tickets or prior missed court appearances that could easily be explained (especially by people who are homeless or poor).

All a thoughtless judge has to do (as so many do all the time) is make some comment on the record about how they feel that the person before them is a flight risk or a danger and, basically, game over – again. And for those situations where that finding is clearly outrageous (and not clear and convincing to anyone but a DA or a close-minded judge) there is absolutely no penalty for a judge to do it anyway, because there is nothing in the high court decision that allows for expedited reviews or implements penalties for judges who exercise their discretion against individuals.

The “consideration” of financial resources (as articulated), however, is a cool, newish rub from the court and will likely be the one part of the high court decision most utilized in arguments by defense attorneys when bail is being set. Sort of a “hey, I know YOU think this bail is low, but look at my client’s resources, and according to the Nevada Supreme Court, you have to go even lower (maybe no cash bail at all) or explain yourself.” This should now be a compelling argument in any court, and especially in the lowest municipal courts where people typically languish for weeks on low bails (think a couple of hundred dollars or less).  

In many Clark County municipal courts, people accused are faced with an actual prisoner’s dilemma: wait in jail (on, say, a 100 dollar bail that they nonetheless cannot pay) for four weeks or just plead guilty and get time served or get only two weeks in custody. Most opt for the latter, even though by racking up charges in this manner, they run the risk of giving a judge fodder the next time they appear in court. A person with numerous guilty pleas runs the risk of being deemed a danger/threat to the community – therefore justifying higher bail. Welcome to the vicious circle of our broken criminal justice system. 

I mean, you do know, don’t you, that people are taken in on bench warrants for traffic tickets in municipal courts all the time and forced to stay in jail unless they can come up with their fines, right? No bail consideration (beyond “pay off fine”) exists for these folks, even with the new court decision. And unless the Legislature picks up the issue of decriminalizing traffic tickets again, or uses this new decision as a basis to finally rid us of the grossly inexact scourge of cash bail, things may not change as much as this decision suggests.

Basically, what I’m saying is that having participated in possibly a thousand bail hearings in my career (many which were very hotly contested), I’ve come to realize a few things. First, no matter how many times the defense attorney invokes the Constitution or the existing protections or points out how policy demands a more limited discretion for judges to deny bail or set it outrageously high (given the resources of my client), judges gonna do what judges gonna do – especially elected judges. One way or another, they feel self-assured in justifying their decision because they don’t want to be the center of a commercial where they gave bail to the one person who went out and killed someone. It’s an ethereal kryptonite to a judge running for office.  

Second, I’ve learned that even when you mandate “findings of fact” or “higher burdens,” judges know they risk absolutely nothing (under cover of judicial discretion) to say magic words (even if they can’t back them up) in order to escape scrutiny – and that even if they do this time and again, nothing will happen to them. 

And finally, it’s always a game of time to courts. Even with a requirement (mostly met now) of a “prompt” determination, time still favors incarceration and judges are almost universally callous about what it truly means to be incarcerated even for a short time.  Generally speaking, I think some judges are really just indifferent to a temporary loss of freedom in the grand scheme of the world because (a) they don’t give a second thought to a person spending a horrific day or week or month in jail because in their mind (b) it’s likely the person may ultimately wind up in prison or possibly not comply with any court orders because they are “bad.” These judges hear, but really don’t care, about what is at the core of any bail motion – that the individual before them has a life to live and work to show up for and people who really count on them to NOT be in custody. The indifferent judges think to themselves (and sometimes say out loud) “Well, you shouldn’t have committed the crime, then.” This thought is quickly followed by the mantra of the bail bond businesses: “Bail equals safety to the community.”

I get that. I get that so hard that I can safely say that’s how we got in this whole cash bail mess in the first place.

But – as the attorneys in this new high court case argued – what the hell is “cash” bail anyway? As barristers Nancy Lemke and Christy Craig argued (and I paraphrase), “Why does payment to the court remove an alleged danger to society? Either they’re a risk or they’re not.” But cash bail has become a polemic part of our criminal justice system (not to mention big business) and so cash bail has remained. This new order doesn’t make it go away, but ostensibly it makes the process where it is imposed a bit fairer…that is, if the judges (and prosecutors) start getting the message. 

Perhaps every judge inclined to keep people in custody when the Constitution suggests otherwise should pause, step outside the courthouse, look up at the big, blue Nevada sky and for the first time in a while, take a breath.

Dayvid Figler is a criminal defense attorney based in Las Vegas. He previously served as an associate attorney representing indigent defendants charged with murder for the Clark County Special Public Defender’s office. During his legal tenure, he served a brief appointment as a Las Vegas Municipal Court judge. Figler has been cited as a noted legal expert in many places including the New York Times, National Public Radio, Newsweek, USA Today, Court TV and the Los Angeles Times. His award-winning radio essays have appeared on KNPR as well as on NPR’s All Things Considered program.