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Bail reforms might have a chance this year


By Michael Lyle, Nevada Current
This story was originally published by Nevada Current.

While testifying on legislation addressing pretrial detention, Kendra Bertschy with the Washoe County Public Defender’s office described a broken aspect of the bail system she said leaves people behind bars even when they haven’t been convicted of a crime. 

One client she referenced was a 19-year-old college student with no prior arrest who was accused of a nonviolent offense, though Bertschy didn’t specify the crime. 

The client, who was referred to as Sara, was subjected to pretrial risk assessment, a tool courts use to determine a person’s safety risk to the community and likelihood to return to court. The higher score, the higher the estimated risk, and Sara scored a zero since she had no prior arrests and valid contact information.

Kendra Bertschy, Deputy Public Defender
Washoe County Public Defender’s Office. Image: Courtesy photo.

“The court decided she should be held in custody on a no-bail hold, which means this college student who scored a zero on her pretrial risk assessment could not get out of custody until she appeared before a court,” Bertschy said. “On that Monday, the judge decided she didn’t want to hear that case that day and continued it to Tuesday.”

Sara was eventually released after the bail hearing and the case was ultimately dismissed. 

“This is someone who should have had the presumption of innocence and unfortunately due to our broken bail system, she was denied her access to be able to be released promptly,” Bertschy said. 

Bail reform has been a contentious topic among legislators for several sessions. While criminal justice reform advocates and civil rights lawyers have pushed for proposed changes, efforts have been fiercely opposed by groups including district attorneys throughout the state. 

Nevada lawmakers are, yet again, looking at legislation that could speed up the time people receive bail hearings, ensure defendants obtain the least restrictive bail conditions, and establish a system to collect data on the bail system’s performance. 

Senate Bill 401 would mandate courts to collect pretrial detention data and submit it to lawmakers quarterly. 

Senate Bill 369 ensures prosecutors provide “clear and convincing evidence” that the bail conditions are the least restrictive.

Assembly Bill 424 would prevent courts from imposing cash bail at unreasonable amounts people can’t afford. If a person remains in jail because they can’t afford the bail amount, the bill would also require a person to be brought back to a court within 24 hours to have the bail condition reviewed. 

Assembly Bill 440 would prevent people accused of some first-time, non violent misdemeanors from going to jail. Law enforcement would be required to issue a misdemeanor citation for nonviolent offenses in lieu of arresting someone. 

Each bill passed out of committee last week. 

What makes this year different?

After proposed bail reform legislation in 2019 was watered down, it failed to gain support from civil rights groups, attorneys and impacted communities, prompting lawmakers to create an interim study on pretrial detention. 

While the commission was meeting in 2020, the Nevada Supreme Court ruled last April in the Valdez-Jimenez decision that bail could only be set when it is necessary to protect the community or to ensure a person returns to court.

Leslie Turner, with the mass liberation project at Progressive Leadership Alliance of Nevada, said the Supreme Court decision was similar to Assembly Bill 325 proposed in 2019, which required judges use the least restrictive bail condition before cash bail.

“We had a bill and we were told it was crazy,” Turner said. “Everything in that bill was in the Supreme Court decision, so it wasn’t crazy. It was actually what needed to be done. So let’s get it codified and move forward on real bail reforms to make pretrial detention equitable for the community.

Clark County Public Defender John Piro said the Supreme Court ruling mandates that people be brought before a judge in a timely manner and the state has to prove by “clear and convincing” evidence that the condition of bail being sought is the least restrictive option. 

Piro added the decision means “prosecutors can no longer use a high amount of money to detain someone because they are too poor to afford bail.”

“We tried to get bail (reform) done in 2019 and the DAs whittled it down so much that it was not bail reform and the bill had to be killed,” he said. “We took our case to the Nevada Supreme  Court and lawyers from my office litigated the case in front of the Nevada Supreme Court. A representative from the Clark County’s District Attorney’s Office called bail reform a ‘pet project’ by a few lawyers. Well, the Supreme Court did not feel the same way.”

Clark County Public Defenders Nancy Lemke, along with former public defender Christy Craig, who won election to a district court seat in November, told lawmakers during a June interim commission meeting that some judges in the state were sidestepping the Supreme Court decision. 

In August, the interim committee debated several proposals that reflect the court’s ruling, resulting in two of the bail bills lawmakers are considering now. 

SB 369, which was presented April 1, and AB 424, which was heard April 6, codify aspects of the Valdez-Jimenez decision from the Supreme Court. 

Senate Judiciary Chair Melanie Scheible said Senate Bill 369 strikes a provision in the state constitution that the Supreme Court found unconstitutional “regarding the defendant having to show good cause to be released without bail.”

Prosecutors would have to prove by “clear and convincing evidence” the condition of bail being considered is the least restrictive and “protect public safety and ensure the person’s appearance in court. 

Assemblywoman Rochelle Nguyen inside the Legislature on Tuesday, March 9, 2021 in Carson City, Nev. (David Calvert/The Nevada Independent)

Assembly Bill 424, presented by Assemblywoman Rochelle Nguyen, removes mandatory amounts of bail, requires a person be brought back to court within 24 hours of implementing a bail condition, and requires courts to consider the federal poverty guidelines when assessing a person’s ability to afford bail. 

“If someone had resources and money, they would just post the bail and get out,” she said. “There would be no conditions. There would be no oversight. There would be no, ‘stay away from the victim.’ There would be no, ‘we want additional alcohol or drug monitoring.’ They just got out because they had money. On the flipside, a person who did not have financial resources would go before a judge and some of those added safety conditions that would protect our community and protect victims could be addressed. 

Nguyen said she is still working to address concerns raised about the legislation, including from rural jurisdictions who say they don’t have the financial resources to hold pretrial release hearings 24 hours after a person has been taken into custody.

While they critiqued some of the language in the bill, both Piro and Bertschy supported the legislation during committed hearings. 

Both SB 369 and AB 424 were opposed by the Nevada District Attorneys Association. 

John Jones, a lobbyist with the group, argued the bills have different language and should be merged “so we have a complete picture of what statutory changes are being made to our bail process.”

State Sen. Dallas Harris, presenting Senate Bill 401, the data collection bill, to the Senate Judiciary Committee April 1, said Nevada has “suffered from a lack of accurate data,” which has hindered lawmakers from making policy decisions. 

SB 401 tasks municipal, justice and district courts to maintaining records of pretrial release data that includes:

  • the offense; 
  • whether the defendant was denied bail or released without bail;
  • the conditions imposed on the defendant including the amount the bail was set at;
  • when the person was taken into and released from detention;
  • if the defendant failed to appear before the judge;
  • if they violated their conditions of bail or committed a new crime; 
  • the sentences given to the defendant.  

Another provision of the bill requires “county and the city jails to notify the court having jurisdiction if the defendant has been sitting in custody for more than 7 days after the amount of bail is set.” It applies in cases where bail is less than $25,000.

“This will alert the courts if someone is truly sitting in jail because they cannot afford bail,” Harris said. “This bill establishes much needed data collection and reporting requirements, which will enable future policy decisions to be data driven.” 

Assemblyman Edgar Flores inside the Legislature on Tuesday, March 9, 2021 in Carson City, Nev. (David Calvert/The Nevada Independent)

Assembly Bill 440, presented by Assemblyman Edgar Flores, would challenge the need to arrest people on first-time, nonviolent offenses, such as trespassing.  

Flores said law enforcement already has some discretion on issuing a citation versus arresting someone for a low-level offense. The bill would codify some of that discretion. 

“If we could put some of that in statute, we set a consistent across-the-board message to ensure two similar individuals who have committed the same exact low-level offense are equally situated,” he said. “So one individual, just because they happen to be in one jurisdiction, won’t be subjected to arrest while another individual who happens to be in a different jurisdiction will get a citation.”

Law enforcement, including Las Vegas Metropolitan Police Lobbyist Chuck Callaway, opposed the bill saying it took away law enforcement’s discretion. He argued a private person issuing a citizen’s arrest “would have more police power than an officer.”

Piro countered there are still situations where officers could issue an arrest. He said the bill aims to ensure officers “cite more rather than arrest more,” a tactic already being implemented during Covid to prevent needlessly overcrowding jails. 

“When you only have a hammer, everything looks like a nail,” he said. “This bill seeks to change some of that.”

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