By Ronnie Najarro
When we are young, we are taught that the U.S. Constitution guarantees equal justice under the law for all. As adults, we come to understand that the reality is much more complicated.
Here in Nevada, we can look to our pre-trial system – the way we decide how to handle someone accused of a crime before a trial – for proof that there is considerable work remaining to make our criminal justice system live up to the ideals of our founding documents.
Like most states, Nevada employs a cash bail system, meaning that judges determine a bail amount depending on the severity of the crime. This practice has been common for centuries. But over time, it’s becoming increasingly clear it creates a two-tiered system where those with means can post bail – oftentimes regardless of the crime committed – while those with limited means must remain behind bars while awaiting trial for the most minor of offenses.
This approach runs counter to the idea of equal justice and is why a number of states are taking steps to adopt smarter pre-trial systems, such as determining whether a defendant poses a flight risk or is a threat to others.
This year, Nevada can follow in these steps by passing Assembly Bill 325, legislation which would help state courts adopt more effective evidence-based pre-trial policies that have been proven to work. The measure, modeled after New Jersey’s pre-trial reforms, operates under the presumption that most defendants should not have to await trial in jail unless they pose a flight risk or pose a danger to their community. Nevada courts would be able to make these determinations through pre-trial hearings that allow judges to weigh a variety of evidence and factors.
To see how this has been working in practice, New Jersey has seen its jail population drop 19 percent in the first five months after enacting smarter pre-trial system changes. But as important as it is to free defendants who don’t need to be in jail while awaiting trial, protecting public safety is also important. Fortunately, the evidence shows that all crime – including violent crime – decreased during the same year New Jersey adopted many of these changes.
For many low-income families, making bail is a significant financial barrier. Low-income individuals stuck in jail, even for a day or two, run the risk of being fired and missing out on lost wages. Research shows that incarcerating individuals simply because they cannot afford to post bail increases their likelihood of committing another crime upon being released. “This seemingly counterintuitive outcome reflects the profoundly destabilizing effects of even short durations of pretrial detention,” Harvard researchers wrote in a 2016 study.
Research also shows that the practice disproportionately impacts minority communities at higher rates seemingly due to their social or economic circumstance. That’s because the impact of monetary bail falls disproportionately on those who are low-income; this means that Nevada Hispanics (who have lower income than white counterparts) are more vulnerable to being stuck in jail pre-trial unjustly, even if they pose lower risk. In a racially diverse state such as Nevada, these statistics underscore the need for lawmakers in Carson City to act.
No one bill will do everything that is required to improve our state’s criminal justice system. But by replacing archaic, unfair and ineffective pre-trial practices with smarter policies, Nevada can begin to create a more just system that provides fairness for the accused and safety for the community.
Our group is ready to work with anyone, regardless of political party, to improve our pre-trial justice system. A person’s income should never be used as a proxy for public safety. The time has come to end what amounts to debtor’s prison once and for all.
Ronnie Najarro is Nevada deputy state director at The LIBRE Initiative.