When I was a public defender in Boston, I represented a Vietnam War veteran who had been arrested in a drug sweep. He’d been struggling with a heroin addiction ever since his tour of duty. As I looked at the men and women in the dock, it was clear that this had been a mass arrest of drug users, not dealers — a row of tired faces, ravaged from difficult years of living with addiction. I litigated my new client’s bail amount down from $1,000 to $100, but my client had no money, and his wife — at her wit’s end with his drug addiction — refused to bail him out. 

My client went through withdrawal and then got temporarily clean in a jail that had no drug treatment program. Weeks and then months went by. We waited for the crime lab to test the drugs; we waited for the prosecution to make a good offer to plead to simple possession. At every hearing, I would argue that my client’s bail should be reduced to zero and he should be released on the condition that he enter a drug treatment program. At every hearing, the judge denied relief, believing that anyone could come up with $100. Meanwhile, taxpayers were footing the bill for my client’s stay in jail. 

Stories like these are common, and that’s why so many states and counties became interested in bail reform, with some transitioning away from cash bail to what a recent executive order coming from the White House is calling “cashless bail.” The order threatens cuts to federal funding for states and local jurisdictions that have “substantially eliminated cash bail as a potential condition of pretrial release from custody for crimes that pose a clear threat to public safety and order.” It’s an attempt to force state and local governments to stick with cash bail.

Nevada still has cash bail, but with important modifications. It’s an improved hybrid of “cashless” conditions and more carefully calibrated monetary bail. In 2020, in a case litigated by the Clark County public defender, the Nevada Supreme Court ruled that the judge must consider the accused person’s ability to pay before setting bail. The court stated that the judge should first consider release and nonmonetary conditions (such as stay-away orders or probation check-ins) and only set a monetary bail if the prosecutor proves by clear and convincing evidence that it’s necessary to ensure the defendant comes back to court or to ensure the safety of another person or the community. 

We don’t have great data on how well our Nevada bail system is working. We don’t know how many people are sitting in jail due to bail orders that fail to accurately assess either risk or ability to pay. In 2019, prior to the change in the law, the Clark County Detention Center reported that around 600 people spent longer than a week in jail because they couldn’t afford a $2,500 bail. The racial disparity was stark, with Black people being four times more likely than white people to be held in jail. Nevada can and should continue to collect and analyze data on this to ensure that the legal changes are reflected in what is actually happening to people in court.

In general, cash bail is unfair and imprecise in selecting who sits in jail waiting for their case to be resolved. Cash bail leads to low-income people being held pretrial while wealthier people pay for their liberty. A working-class person who lives paycheck to paycheck will sit in jail for weeks, months, sometimes years, even though the case against them may ultimately be dismissed or they may be found not guilty. At the same time, a person who is accused of a more serious crime and poses a risk of flight gets released simply because they have the money for bail. It’s impossible to see how paying a sum of money ensures community safety, and there are far better ways of ensuring people return to court. 

Reading the executive order, you’d think “cashless bail” means that nobody arrested for a crime is ever held in jail while they await trial. In jurisdictions that do not use cash bail, the judge can still order nonmonetary bail conditions. The judge can order the person to stay away from the complaining witness, to check in with probation, to submit to drug testing or even to wear a location-tracking ankle bracelet. If the prosecutor proves that no set of conditions will ensure the person’s return to court or the safety of the community, then the judge may hold the accused in jail until the case is resolved. 

In other words, instead of paying to get out of jail or sitting in jail because you don’t have the money to pay your way out, these jurisdictions focus on the factors that lead people to come back to court and protect public safety. The federal government adopted this system in 1984. Washington, D.C., adopted this system in 1990, and several other states followed suit.

More importantly, bail reform is not a safety threat. In a study of 33 cities, the Brennan Center for Justice found that, between 2015 and 2022, there was little difference between those that implemented bail reform and those that did not. Overall, according to FBI statistics, they found slightly lower average crime rates in cities that transitioned from monetary bail to “cashless bail.”

Likewise, a New Jersey study found no increase in gun violence after bail reform. On the flip side, a study of 380,000 misdemeanor prosecutions in Texas found that pretrial detainees unable to make bail were more likely to commit crimes in the future than those who had been released pretrial. The study also concluded that pretrial detention had "devastating consequences,” including loss of home, employment and child custody. 

Nevada’s shift away from unaffordable bail was hard-won and is still a work in progress.  It is the product of intense litigation before the Nevada Supreme Court and historic 2021 legislative changes that reduce reliance on cash bail and ensure prompt, individualized determinations of release. Nevada still has a cash bail option, so, contrary to some reports, the executive order shouldn’t derail our reforms — though it may pressure Nevada judges to shy away from nonmonetary conditions of release, lest they make themselves vulnerable to criticism or attack. Nevada shouldn’t take the bait of an executive order that jails people without the money for bail and ignores the data on what really works for courts and public safety. 

It’s easy to see how pretrial detention can be a tool of government overreach. Remember the D.C. lawyer accused of throwing a sandwich at a federal officer on Aug. 10? A White House fact sheet bemoans this man’s pretrial release due to D.C.’s “cashless bail” system, intimating that he should have been jailed pretrial because he’s “charged with a sentence that carries up to eight years in Federal prison.” But his pretrial release makes sense. He didn’t pose a flight or safety risk and, a few weeks later, the grand jury refused to indict him on the felony charges. Pretrial detention would have been a ridiculous abuse of state power and taxpayer resources.

What often gets lost in debates about bail reform is that a person accused of a crime is presumed innocent. If you are accused of a crime, the default setting is that you should not be incarcerated until and unless you are convicted of the crime. In the words of the Supreme Court, “In our society liberty is the norm, and detention prior to trial or without trial is the carefully limited exception.” 

Nevada has made strides in reducing the unfairness of cash bail. The recent attack on so-called cashless bail should not discourage our state from living up to those reforms: carefully assessing ability to pay, setting conditions of release that do not punish poverty and keeping pretrial detention as a “carefully limited exception.” 

M. Eve Hanan teaches criminal law and procedure and directs a criminal litigation clinic at the UNLV Boyd School of Law. Previously, she practiced criminal defense at the trial and appellate level in Boston, Baltimore and Washington, D.C. The opinions expressed here are her own and not those of UNLV or the Boyd School of Law.