Nevada Supreme Court study could greatly reduce jail release based on bail

A Supreme Court study committee is working on a plan that could make sweeping changes to how defendants are released from jail before trial.

Chief Justice Jim Hardesty said there’s a growing legal and societal recognition the existing system based almost exclusively on a defendant’s ability to post bail isn’t effective and has been questioned as potentially unconstitutional.

“What many states have found is they can release a number of individuals on their own recognizance or under court supervision pending trial and release people much more quickly from jail than is currently taking place and not rely as much on releasing people strictly on financial conditions,” he said.

He said for too long, Nevada judges have made pretrial release decisions on anecdotal information about the accused or their ability to make bail. He said an initial survey of Nevada courts found most weren’t using any risk assessment tool.

A system based on the financial ability of the defendant has been questioned in several courts as well as by William Rehnquist in 1984 when he was Supreme Court Chief Justice.

“In our society, liberty is the norm and detention prior to trial or without trial is the carefully limited exception,” Rehnquist said.

In addition, the Department of Justice issued a statement in a recent case stating “any bail or bond scheme that mandates payment of pre-fixed amounts for different offenses in order to gain pre-trial release, without any regard for indigence, not only violates the 14th Amendment’s Equal Protection Clause but also constitutes bad public policy.”

Finally, the U.S. District Court in the middle district of Alabama stated just a month ago: “Criminal defendants, presumed innocent, must not be confined in jail merely because they are poor. Justice that is blind to poverty and indiscriminately forces defendants to pay for their physical liberty is no justice at all.”

Hardesty said his primary concern in heading the Nevada high court study is using an objective assessment instrument that works better.

“Research has concluded judges make much better decisions when operating from a validated risk assessment that contains a lot of information about the accused gathered objectively and not from the accused,” he said.

He said the failure to appear rate “has been significantly reduced under these methods.”

“A number of federal cases around the country have called into question pretrial releases based on financial conditions and extensive research shows that better pre-trial release decisions are made when they are based on a validated risk assessment instrument,” he said.

The result, he said, is a significant reduction in overcrowding at jails where a “validated risk assessment tool” is used to release defendants quickly after arrest and, in many more cases, without requiring bail.

“The important point about all this is, by changing to this system, the court can release people that should be released,” Hardesty said. “The single mom who commits a bad check offense but can’t afford money for bail is not a flight risk. The drug dealer who can make bail in hours after being arrested, keep that individual incarcerated.”

He said a risk assessment tool would weigh such things as the defendant’s criminal history, education, community connections and employment stability to decide who’s a flight risk and who’s likely to show up for court.

“Knowing the risk of an accused subject will allow judges to make a sound decision based on the risk rather than the ability to pay,” Hardesty said.

He said getting them out of jail quickly means fewer would lose their jobs or suffer disruption of their social networks.

According to the Pre-Trial Justice Institute, the total jail population in the U.S. has increased by 84 percent — 340,000 — since 1990 to a total of 745,000-plus. The institute reports 77 percent of that increase is people who haven’t yet been convicted of any crime.

Hardesty said a number of states have tried using validated risk assessments to determine who should be released. Kentucky abolished commercial bail in 1976. In that state, 70 percent of defendants are released, 66 percent without having to post bail. Just 10 percent fail to show up for court.

In Washington D.C., 80 percent of defendants are released before trial and 88 percent of that number make all court appearances.

Colorado also has a risk-based assessment system and reports low-risk defendants were released 91 percent of the time and 95 percent of those people kept their court dates.

The committee will examine the risk assessment systems in place in those states at its next meeting set for Nov. 5.