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Strict deadlines for deciding on freedom are latest big change in Nevada’s bail landscape

Michelle Rindels
Michelle Rindels
Criminal JusticeLegislature
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At a hearing this spring, activist Jagada Chambers described jail as “a dungeon” where every moment is trauma-filled.

It’s why he and others pushed lawmakers to put a strict cap on how long courts have to give a defendant an initial bail hearing that could mean the difference between spending a few hours in jail, or several days, without being convicted of a crime.

Legislators ultimately passed AB424, a measure that requires that a pretrial release hearing happen within 48 hours — drawing cheers from supporters who want to ensure that people are not kept behind bars for long periods of time simply because they don’t have as much money as other defendants to bail out sooner.

“We have to take into consideration the people that we're talking about here are innocent,” said Chambers, who has worked on voter rights restoration and other issues affecting formerly incarcerated people. “You should make any effort to take appropriate channels to get that handled within an hour because a person in that [dungeon] — it’s irreparable damage.”

The measure, which goes into effect next July, comes after a decades-long push in Nevada and nationwide to end or curtail the practice of using money to broker release from jail. Those efforts have largely hit dead ends in the Legislature — until a landmark decision from the Nevada Supreme Court last year helped force lawmakers’ hands by setting significant requirements for judges who want to use money as collateral for release.

“You put a bunch of cracks in the ceiling and eventually you break through,” said Sen. Dallas Harris (D-Las Vegas), who presented the bill in the Senate along with Sen. Dina Neal (D-North Las Vegas). “This was that session for bail reform.”

Critics of the status quo say using money in exchange for freedom means people are often kept behind bars longer because they are poor, rather than because they pose an actual risk to public safety. Lawmakers drew a contrast between indigent clients unable to bail out and a case involving multibillionaire Henry Nicholas, who was released without bail as he faced charges of felony drug trafficking stemming from an arrest in Las Vegas.

Even a  short jail stint can disrupt a defendant’s job and family life, making it harder to get back on their feet and return to being a productive member of the community. And bill supporters chafe that drawn-out, pretrial detention is happening to people who are presumed innocent.

“$5,000 — for some people that is insurmountable and just amounts to detention. For others, it's absolutely nothing, and that has zero to do with how dangerous the person is to the community,” Harris told The Nevada Independent. “And that is not the goal of our system at all.”

The pivotal ruling came in April 2020 in the case of Jose Valdez-Jimenez, who was assessed $40,000 bail that he could not pay after police arrested him for stealing thousands of dollars of Victoria’s Secret merchandise in Las Vegas. Among other things, the Supreme Court’s order required defendants get an individualized and adversarial court hearing — one that can involve cross-examining witnesses — promptly after their arrest to consider whether they should remain behind bars.  

But how to define “prompt” had been an open question in the year after the court ruling, subject to a wide range of opinions and questions about what can be reasonably expected from smaller jurisdictions. Lawmakers ultimately put parameters on the matter through AB424, which passed 30-12 in the Assembly and 17-4 in the Senate (several Republicans joined Democrats to support the measure).

“Having this standard across the state of, ‘you have to have a bail hearing within 48 hours,’ I think will make a huge difference,” said Washoe County Deputy Public Defender Kendra Bertschy. “How they're being treated really depends on what side of the street they're arrested on. And that's really concerning with the level of justice, and the equal justice that you're given, really depends on what court you end up in front of.”

The outcome hasn’t satisfied advocates who want complete abolition of money-based bail. They expect Nevada will still need private funds supported by donors that bail people out and help them get on with their lives before the 48-hour clock runs out.

“I think they took safe steps this year ... I think they did what was not going to ruffle too many feathers,” said Leslie Turner with the Mass Liberation Project and the Vegas Freedom Fund, which bails people out of jail and offers a wide range of support services to address other needs in their life upon release.

Holly Welborn, policy director at the ACLU of Nevada, described the law as an improvement but not a total transformation.

“We have at least met the floor of what's constitutionally permissible in the bail system in state statute,” she said. “But we haven't really embraced ending the system of wealth-based detention.”

But prosecutors, police and judges — especially ones in rural jurisdictions with smaller staffs — argue the hard deadline goes too far and is “unworkable.”

“It's an unfunded mandate,” said Jennifer Noble of the Nevada District Attorneys Association. “And it's not something where we object to the principle of it ... it's just that we need resources and funding and more people, frankly, because it's not just attorneys that are in this process.”

Others have criticized the bill as going too far in the effort to ease up on a “tough on crime” mentality that prevailed in the 1990s and beyond. Chuck Callaway of the Las Vegas Metropolitan Police Department said he worries about crimes rates going up when he sees statistics about people cycling quickly out of jail, and he senses in some of the Legislature’s recent work “an attitude of not holding criminals accountable for their actions.”

A bail bondsman arrives at the bail window at the Las Vegas Detention Center on July 29, 2021. (Daniel Clark/The Nevada Independent)

How bail works

The commercial bail bonds industry as it exists in the United States has been around since the late 1800s. After a person is arrested, a monetary amount is assigned based on the charges they face, often in line with the guidelines of a standard bail schedule, and loved ones can pay the money in full to get them out. The exception is for very serious charges such as murder, when defendants are constitutionally barred from bailing out. 

That money will be reimbursed if the person shows up to court to face the charges. In situations where loved ones do not have sufficient cash to make bail, they can enlist a bail bonds company to make the payment, but state law allows the bail company to keep 15 percent of the payment as a nonrefundable fee for its services — even if the person makes all of their court dates.

People being held in jail because they await trial — and who are considered innocent because they have yet to be convicted — make up a large portion of the Clark County Detention Center’s population. The jail, which averages about 3,700 people a day, reported 2,779 defendants were staying there on a pre-trial basis in December 2019, as opposed to serving out a sentence after a conviction.

About 85 percent of people the jail was holding pre-trial were accused of a felony, with the rest facing lesser charges. But there were signs that inability to pay bail was holding back people accused of low-level offenses — in December 2019, the jail reported having 44 people in custody for more than seven days on bail amounts less than $2,500.

Activists attempted to change the law most recently in 2019, when they came together to research what other states were doing and introduced AB325 — a bill that would have factored in a defendant’s ability to pay when setting bail. The measure, sponsored by then-Assemblyman Ozzie Fumo (D-Las Vegas) and other Democrats, faced strident opposition before it was killed, and lawmakers instead advanced a resolution calling for an interim study on pre-trial issues

“We wrote that bill, and it was ... killed,” Turner said. “But then everything that the Nevada Supreme Court ruling in Valdez-Jimenez stated, was literally everything that was in that original bill, AB325.” 

In Valdez-Jimenez, justices ruled that Nevada bail law was unconstitutional because it did not require the court to consider terms of release that were less restrictive than incarceration before determining that cash bail should be imposed.

It also shifted the burden of proof. Prior to April 2020, the law required the defendant to make a “showing of good cause” about why they should be released. In the ruling, justices flipped that standard and ruled that it was the state’s responsibility to prove — through “clear and convincing evidence” — that bail was necessary to ensure a person’s appearance in court or public safety. 

Advocates support alternatives to cash as ways to ensure someone’s court appearance, including drug testing, GPS monitoring, court date reminder calls, substance abuse rehabilitation and check-ins.

If judges conclude bail is needed, they have to document “findings of fact” about why they came to that conclusion. Harris has framed the new paradigm as a win for civil libertarians.

“This issue is an opportunity for me to proudly wear the conservative label,” Harris, who chaired an interim committee on bail, said when she presented AB424 to fellow lawmakers. “I see this as a question of how long the government can hold you, deprive you of your liberty, prior to making any argument about why that liberty should be deprived.”

State Senator Dallas Harris on the fourth day of the 81st session of the Legislature in Carson City on Thursday, Feb. 4, 2021. (David Calvert/The Nevada Independent)

Overextending staff

The bill faced fierce pushback from prosecutors and rural judges, who argued that they could drive members of their small staffs to burnout if they needed to maintain availability through the weekends. Keith Lee, a lobbyist for the Nevada Judges of Limited Jurisdiction, also questioned bill proponents’ arguments that some defendants were waiting up to 12 days for a bail hearing.

“I have no way to know whether those are correct or not. I assume they're correct. I would respectfully suggest to you that they are one-offs, however,” he told lawmakers. “And I certainly want to dispel any implication that the reason there was so many hours taken is a result of the judge’s failure to act.”

Some bill opponents asked that the deadline for a hearing be extended to at least 48 judicial hours — meaning the clock would stop for nights and weekends — on the basis that a literal 48-hour timeline prevents even defense attorneys from preparing their case to get their client out. 

Noble, representing prosecutors, said lawmakers needed to consider all the support staff needed to prepare for the kind of robust hearing envisioned in the Valdez-Jimenez ruling. That includes investigative staff to pull criminal histories from an FBI database, staff to obtain information from law enforcement and staff in the pretrial services department to prepare risk assessments (an evaluation of how likely a defendant is to skip court or commit another crime).

“It is not as simple as just providing prosecutors to staff these hearings on the weekend,” she said. 

Judge Stephen Bishop of White Pine County called the 48-hour drop-dead timeline an “overcorrection.”

“It's going to be setting my court up for failure, my attorneys that for failure, and even the defendants up for failure,” he said during a hearing on the bill.

Some proponents said the cost concerns did not outweigh constitutional rights.

“What I'm hearing is that upholding our civil liberties is too expensive,” said Las Vegas resident Joseph Lankowski, who testified to lawmakers while he was out of jail on bail. “Where are we going to find the money to give our citizens their constitutional rights? And that's just not a viable excuse for me.”

In an interview, Harris acknowledged the new requirement could be a challenge, but she said she hoped it would push jurisdictions that have underfunded correctional facilities and services for people who cannot afford a lawyer to direct federal American Rescue Plan dollars to the cause.

“I think the courts are going to have to stretch a little bit, and get creative in order to be able to meet this new 48 hour requirement,” she said. “I’m hoping that the statutory requirement will give them a little bit of motivation to invest in that area.”

The bail window at the Las Vegas Detention Center as seen late Thursday night, July 29, 2021. (Daniel Clark/The Nevada Independent)

Work left undone

The Legislature’s moves this session fell short of doing away with cash bail. Proponents had hoped to get rid of the bail schedule entirely when they thought they might have the timeline reduced to 24 hours — that would make it unnecessary because incarcerated people would know they will see a judge within a day and could likely avoid missing much work because they are behind bars.

“We could eliminate bail, if we went to the 24 hours, and then it wouldn't be a wealth-based system,” said Clark County Chief Deputy Public Defender John Piro, who noted many people bail out within the first 12-24 hours. “But because we're not there, we're gonna have to keep some amount of bail so that people can bail out if they get ahead.”

The issue is also complicated because the Nevada Constitution explicitly says “all persons shall be bailable by sufficient sureties” except in certain murder cases. Eliminating cash bail would likely mean embarking on the multi-year process of removing it from the Constitution; Harris said she wasn’t aware that anyone is launching such a project.

The bill wasn’t the only one to come out of the work of a committee that spent the legislative interim exploring Nevada’s pre-trial release system. One bill that made it into law, AB440, requires officers to give people a citation instead of something stronger for their first nonviolent misdemeanor offense. 

The committee did also send a letter to court administrators, asking them to re-validate a pretrial risk assessment form. In interim meetings, several speakers argued the tool perpetuated racial biases because it predicts future conduct on statistics such as previous arrests among people of certain races.

Another bill, SB401 proposed collecting detailed information about the number, reason and bail amounts of people being held in jail before trial, and reporting that data to a statewide court administrator. It died over concerns about the costs of implementation.

If football is the analogy, Harris said, the Legislature didn’t quite score a touchdown on bail issues, but got within goal range. Keeping cash bail, but requiring a hearing within 48 hours, allows people who can get out earlier the option of doing so because they can pay, without letting those who can’t remain in jail for too long.

“Forty-eight hours I think is where we could kind of push our system right now to be a bit better,” Harris said.

Turner said she hasn’t seen much of a difference in bail practices in the year since the Supreme Court's ruling, based on calls she receives from people seeking help through the Freedom Fund, although she is noticing that bail amounts have been lower than they previously were. She’s also heard people say they aren’t getting the Valdez-Jimenez hearings they are entitled to — a trend that attorneys said they noticed in the wake of the decision.

She wants to make sure courts are complying with the ruling and stricter timelines. But she’s also got her eye on bigger goals than just successful implementation, including getting law students involved in helping craft future policies that take bold steps in changing the criminal justice system.

“I think I'm reimagining what pretrial detention is, and what it actually means for public safety,” Turner said. “Figuring out how we can write new policy and write and create new systems that reflect the world that we all want to live in.”

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