The effort to reform the concept of cash bail failed miserably in the recent legislative session. It’s not a surprise given that the argument came down to “being kind-hearted with bad people” versus “keeping our community safe for good people.” Such an either/or false dilemma was the cause for the demise of many proposed long-term systemic fixes to the failings of the arrest-your-way-to-zero crime approach to societal ills. What remains is an abject failure of our criminal justice system and mass incarceration (at least in broad strokes) that most people agree is a nasty thing.

The key, wrong idea here being that people are either good or bad. And that bad people will try to take advantage (or hurt) good people at every turn unless we have laws, the power to incarcerate and the will to punish for transgressions against the “good people.” In creating what we believed to be an impartial set of rules and consequences, we forgot that we are all flawed. That no one amongst us, if given the chance, wouldn’t throw a rock from their glass house. Not to say everyone is a potential rapist, murderer, druggy and thief – but we are all shaped by our circumstances, challenges, upbringing, mental disorders, addictions, financial stability and thousands of factors that make a human a human.

The criminal justice system as we have developed it simply focuses on two of those factors – fear and vengeance.

How this relates to bail goes back to the Bill of Rights in the United States Constitution.  Our founders, perhaps digging a little deeper regarding the human condition, thought it wise to not punish people with incarceration prior to (at least some) restraint and due process. Of course, I always seem to be railing against the failings of due process as carried out by our Great State. But it is the American process, allowing us to get from point A (arrest) to point B (conviction) with the alleged transgressor in a way that seems civilized.

I like to think the idea of bail was actually a deeper construct. That it was intended to give time, if nothing else, for the accused to come to terms with being in the machinery of government action against the individual. To get one’s affairs in order, to prepare one’s defense to the charges, to bid farewell to those who will leave as the accused’s sphere of freedom is potentially foreclosed, to value moments of humanity in reflection prior to that humanity being stripped away as one becomes the ward of an unforgiving incarceration machine, and more than anything, to prevent coerced confessions to crime simply to gain a pathway to freedom shorter than waiting for resolution. Indeed, bail is guaranteed for all but the most heinous capital crimes, and if it must be “cash” or a bond in lieu of cash (which still requires a payment), it mustn’t be excessive by any objective measure.

As our system “evolved,” other factors were developed – differing from state to state – to guide magistrates in setting the amount of bail and the conditions surrounding that bail. And yet, as detailed or vague as those factors may be, it is universal that the amount of bail serves but two purposes: (1) enhancing the likelihood that a person will not flee the process and (2) reducing or eliminating one’s imminent future danger to the community.

Yet, even with those two very clear and understandable underlying principles, those responsible for setting bail in individual cases (or creating standard bail tables for crimes) tend to pervert the both principles. To some judges, everyone charged with a crime is a potential flight risk because, perhaps, the judge has decided it’s in the human condition to run from adversity. And to some judges, everyone who has been accused of committing a crime is inherently likely to commit more crimes even as they have entered the formal process of criminal litigation.

And while it’s true that there are individuals who have both fled and/or committed more crimes while on bail, I have never seen a vetted, academically sound study that suggests it is more than a statistically insignificant number. To the contrary, data-driven studies show that with proper analysis, bail is superfluous to the goals of, er… bail. And while these data studies have been criticized as embracing a model tilted against people of color, it inherently proves that bail and the goals of bail are tenuous. And even then, there are long-standing questions around whether the specific dollar-amounts of bail ever truly supported the principles underlying bail.  Well, unless you always maintain a bail so high for everyone that everyone stays in jail from the get-go! That amount (read: a gabillion zillion) absolutely guarantees that the potential for problems on the outside is moot. Every other amount is basically arbitrary; the argument that the higher the amount, the more likely a return to court will happen is yet unexamined by any real study and also contradicted by control-studies that don’t involve a cash-exclusive bail.

But back to fear and vengeance.

The public doesn’t give a darn about whatever-the-hell bail is when they don’t like the person accused of a crime. The DAs who represent “the people” are aware of public opinion when they advocate for “no bail” or astronomically high bail. The judges who are elected by the people know that it moves the needle against them if a person is “on bail” and commits another crime on their watch, and that is always possible – at least sayeth the fear-mongers, data deniers and relentless lobbyists for entities with a strong economic interest to keep fear-mongering and data denial at a fever pitch.  

And so we pit people who love criminals against people who love safety, and well, that’s a non-starter — as was real bail reform in the 2019 Legislature. So is there any hope that bail will in fact be reformed or eliminated altogether?

Sadly, it doesn’t look like the answer will be yes in Nevada anytime soon. For every sad and sorry person arrested on minor charges who many (but not all) agree shouldn’t languish in custody because bail is unaffordable, there’s also the lady on the bus who pushed an old man in a moment of anger leading to his later death from the fall. (Regarding the latter, the field of enlightenment known as “the comments” section of every local media outlet would apparently prefer a swift imposition of the death penalty, including for the judge who granted the hundred-thousand-dollar bail plus house arrest that she was afforded. And that doesn’t even begin to take into consideration how we’re to accord the billionaire who got busted with trafficking levels of drugs but didn’t have to put up any bail at all.)

And really for all points in-between, too, the basic concept that we are at once afraid and very angry at people on the criminal process radar doesn’t just dissipate because there’s a national drive to be fairer and more objective.

See, we can’t be fair and objective because it would take an inordinate amount of time and money to do it – and we are lazy, cheap and subjective.

In a perfect world, when a person is arrested for a crime – despite the sometimes horrific emotional impact on the purported victim – so long as the victim is safe, the presumption should be to give that person every moment of precious time out of governmental custody because government custody is dehumanizing. The way we so viscerally allow our reactions to individual crimes to drive a system supposedly in place to rationally protect against government overreach and dystopian institutions is our societal shame.

That said, in a perfect world, once a person is arrested for a crime, we should take the time to look at the human standing before the court, flaws and all, to figure out an individualized program designed to utilize the tools of technology and the societal safety net in order to begin the journey of acclimation into “the good” people again – whether that means drug treatment, stable housing, familial support and commitment, mental health assistance, GPS monitoring, house arrest, job training, or the scores of other resources to ensure, even if convicted, that the person won’t be back in court.

When we do high-bails, or no-bails, we almost guarantee the opposite. We negatively alter and even stunt the ability for the alleged wrong-doer to get better quicker. Putting people in government custody, especially for long periods of time, doesn’t create an incentive to act better out of fear of returning for most inmates. But prolonging the time away from humanity; taking away their resources and opportunities; putting them in the PTSD fields of the incarceration nation – this is a guarantee that society gets an expensive, net loss every time we succumb to it.

It is wrong-minded (and exhausting) to fear all “criminals” for ever and ever. It is outright destructive to let our anger at their actions interfere with the long-range plan of making any transgression an anomaly over a pattern.  As much as what they did to their victims is not fair, vengeance doesn’t bring back whatever was lost and society has a vested interest in doing right and well. We need to talk about that. As long as we have the ability to keep victims safe from further harm (and we can if we used all our resources to do so), we have an obligation to be our best selves towards our worst actors. Mercy, compassion, forgiveness – these are the seeds of a great society.

Are there people who cannot under any circumstances be out of custody in their current states-of-mind and intention – absolutely.  Is that number the more than 13,000 people in prison in Nevada? Doubtful. Is that number more than the thousands and thousands of additional people currently awaiting trials in unpleasant jails throughout the state? C’mon. Of course not.

All this, of course, made for a fascinating but useless debate in the recent legislative session which proclaimed before (and after) to be vitally interested in criminal justice reform. Instead, we had to settle for the leavings of a very calculated campaign from the bail bond industry, the police and the district attorneys who said we need high cash bail amounts to make our communities safe. That resulted in all reform measures being killed in lieu of a “study.” Here’s hoping that the big ideas about who we are also get “studied” rather than simply the minutiae of many people miss court. To fall victim to a slight tinkering of numbers – well, that would be a crime for which we won’t be bailed out any time soon.

Dayvid Figler is a private 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.