Two Clark County public defenders told legislators on Wednesday that they need to reinforce an April ruling by the Nevada Supreme Court that dramatically changed the state’s bail system.
The opinion ruled unconstitutional the statute requiring a defendant to show good cause before he or she can be released without bail.
Two cases were combined by the high court in its ruling. Both involved defendants who were unable to get out of jail before trial because their bail was set far higher than they could afford — $250,000.
Nancy Lemcke and Christy Craig told the committee studying pre-trial release of defendants that the opinion puts the burden on the prosecution to show by clear and convincing evidence that detention is necessary. It requires a prompt hearing on the subject of bail or detention and eliminates “poverty-based detention.”
That hearing, they said, should come in six to eight hours but in no case more than 48 hours after arrest. In addition, it says the defendant is now entitled to counsel at that hearing and both sides can present evidence.
They called on lawmakers to introduce legislation clarifying the rules including a determination of what constitutes a “prompt” hearing.
“The state now bears the burden of proof,” said Lemcke. “The state has to decide whether or not the person is a person that should be detained.”
She said if prosecutors want that person to stay in jail pending trial, “they have to make a showing,” because, under the high court ruling, no bail release is the default for defendants now.
They pointed out that the current system using bail schedules presents a serious equal protection issue because those with money can be released on bail after their arrest without ever having to go before a judge. And those defendants are released without any conditions such as an order to stay away from their victim. Those without money, they said, have to appear before a judge to argue for their freedom and be subject to possible conditions including cash bail.
And they said when bail is the only answer, the bail should recognize the defendant’s ability to pay, that some one who makes $12,000 a year should face a far smaller bail than some one who makes $500,000 a year.
They added that the opinion makes it clear that non-monetary conditions should be considered before bail and that those conditions as well have to be attainable. If a condition mandates an ankle bracelet but the county doesn’t have any, that becomes an unattainable condition.
If the conditions can’t be met for any reason, Craig said, that would violate the ruling because the conditions would effectively operate as a detention order.
To justify keeping some one in jail, the opinion says the judge must make a record.
“You have to say detention is appropriate and here’s why,” she said.
But instead, she said too many judges are just making a long record that doesn’t justify detention, sidestepping the opinion.
Craig said there are a number of different levels of conditions judges can now require including house arrest, restraining orders to keep defendants away from their victims or certain locations, electronic monitoring and GPS ankle bracelets as well as bracelets that monitor for alcohol and drug consumption. But she said since violating those conditions could land a person back in jail, they too should be clearly justified by the judge as he imposes them.