Pre-trial release program is more successful than expected
December 4, 2016
A pilot program testing whether more defendants can be released from jail without paying bail is turning out more successful than even its creators expected.
Supreme Court Justice Jim Hardesty said Nevada's existing system is based on a criminal defendant posting cash to be released before trial. He said the committee studying the system instead concluded judges should be making pre-trial release decisions based on a risk assessment instrument that evaluates each defendant.
"The only things a judge or magistrate can look at in a pre-trial context is whether they will make future court appearances and whether they present a public safety risk," he said. "If they will make court appearances and they don't present a public safety risk, then they should be released without having to pay money."
Bail was designed to ensure defendants appear as required for hearings or trial but Hardesty said evidence from other states indicates most defendants will appear without having to pay bail.
Bail has been criticized as favoring only those who have money, discriminating against those who don't.
Hardesty said there are several states including Kentucky, Virginia, Arizona and Washington, D.C. that already make those decisions using an evidence based risk assessment. He said several months ago, the committee he formed to study pre-trial release in Nevada ordered a pilot program in all Washoe County courts, the Clark County district courts and four JP courts as well as in Ely Justice Court.
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"By in large, everyone has been very impressed with the process so far," said Hardesty. "It has really been more successful I think than what we had anticipated."
He said the risk assessments provide the judge more information to use in deciding who should be released from jail, "not simply relying on cash bail or bonds that many defendants can't afford to pay."
He said Justice of the Peace Stephen Bishop in Ely told him the system has sped up the entire process, allowing defendants to work with their lawyers and resolve cases more rapidly. He said he has had no defendants fail to appear for court thus far.
Hardesty said Clark County also reports no cases where a defendant released without requiring bail has failed to show up at this point.
"In Las Vegas it was zip; in Ely it was zip," he said.
Data from Washoe County wasn't yet available.
He said another feature of the program is calling defendants a day or so before their scheduled court appearance to remind them to show up. He said a reminder call in Clark County caught the female defendant just as she was going to University Medical Center for a cesarean section. Except for that call, he said she would have faced an arrest warrant for not showing up and Child Protective Services would have taken her newborn. Instead, the hearing was continued until the new mother could attend.
"That whole thing was avoided by a simple phone call," Hardesty said. "That's the kind of example that makes this whole process worthwhile."
In the end, he said the risk assessment instrument is a tool that rates a defendant based on his or her history.
It assigns points to a defendant based on such things as pending cases against him, age at first arrest, whether he has a history of violent arrests, prior failures to appear and substance abuse history among other things. The higher the number of points defendants get, the more likely they're to remain in jail.
Hardesty said it's a tool, the judge can disregard the score if he believes it doesn't reflect the risk the individual before the court actually represents. He said, for example, a defendant charged with a serious crime such as molesting a child may have a job, a clean history and score low on the assessment but should remain in jail for protection of the community.
He said it's a tool for the judge to use, not a requirement.
Hardesty said the other thing that came up through the past year of studying this issue is the bail schedules around the state.
"Bail schedules in Nevada are all over the map, much different for the same crime in a different county."
He said the committee has been looking at that issue but doesn't have any recommendations yet.
"But it is an issue," Hardesty said.