Major changes in Nevada’s bail system could soon be enacted statewide. If that happens, justice in Nevada will not be blind – it will be downright discriminating.
That’s not a bad thing. In fact, it is the very point of the pretrial release system now being tested in three counties.
The bail system in courts across America is being radically changed in an effort to lessen its inequities, and Nevada has joined the movement by starting a test program in three counties.
Most people are familiar with how bail is traditionally handled in court: The judge sets a dollar amount primarily based on the severity of the crime a person is charged with. Since it can take months or years for a trial to take place, suspects who can afford bail have the option of getting out of jail by putting up cash or taking out a bail bond – generally 10 percent of the full amount – under authority of a licensed bonding agent.
That system is going out the window in many jurisdictions. The new system will determine if a defendant pays bail or is released on their own recognizance, based on the risk of them showing up for trial. Suspects are asked a series of questions, and their responses determine the conditions of their pretrial release.
There are multiple reasons why this new system might serve justice better than the time-honored version. Setting bail amounts based on the offense does not take into account the ability of a suspect to pay, which means the system favors the rich over the poor. Drug dealers in particular are known to have large amounts of cash and can bail out even if they are a high flight risk.
“Frankly, our judges have been setting bail or releasing individuals in the blind,” Chief Justice Michael Cherry told lawmakers in his recent State of the Judiciary report.
“An individual comes to court on a charge, bail is set and too often the person sits in jail waiting for their court date. Our judges don’t know if the person is a risk to the community, and too many people have lost their jobs or their homes because they’ve had to wait in jail,” Cherry said. “In short, for the poor, bail means jail.
For the past seven months, a pilot program in Clark, Washoe and White Pine counties has involved judges evaluating pretrial release based on evidence-based practices and risk assessment factors that were developed over the prior year, and now judges “are no longer in the dark,” Cherry said.
Nobody is promising that the program will be expanded to other counties, but that is surely what we can expect. Court systems in several states across the country have adopted similar programs.
An article in the San Jose Metro newspaper by Jennifer Wadsworth explains how California courts are using an algorithm based on a nine-point scale to determine the chances of a defendant showing up for court, as well as his or her risk of reoffending:
“The clerks — employees of Pretrial Services’ round-the-clock jail division — don’t set bail based solely on the alleged crime. Rather, they review pending charges in addition to rap sheets and records of attendance at scheduled court appearances. They also ask about living and work situations, histories of mental health and substance abuse and whether the case involves any victims.”
After running the responses through the algorithm, defendants are given a score.
“Low scores call for release without supervision. Moderate risk levels equate to supervised release, which usually involves electronic monitoring or house arrest and more frequent phone or face-to-face check-ins. “
Nevada’s risk assessment includes similar questions, including whether the suspect has been arrested “multiple” times in the past for drug use or alcohol offenses. Scores range from 0-11 and “override” factors can be added for several reasons, such as whether the offender is a gang member.
The new systems are not without controversy, of course. Collecting and processing the risk factors is a more time-consuming process than setting simple bail amounts. According to a KRNV report out of Reno, that has resulted in some people sitting in Washoe County Jail longer than under the old system.
NewJersey.com recently reported that a man who was a fugitive for nearly two months after being charged with a shooting was released without paying any bail, and another defendant was re-arrested after firing a gun into a home less than two weeks after he was released with only an ankle bracelet.
“Since the start of the new program this year, prosecutors and police have publicly complained that a number of suspects have been released only to go on and commit additional crimes,” reported the news site, along with a call from the state’s public safety director to “re-examine” the new system.
The loudest opposition has come from bail bondsmen, who stand to lose considerable income as more people are released from jail without bail.
Nevada’s judicial leaders have been careful to craft a system based on considerable input from experts and direct feedback from the pilot program. They were wise to include White Pine County with the state’s two largest counties to see how effective it would be in rural areas, which might have only one judge and no staff dedicated to preparing pretrial release documentation.
Bail reforms such as the pilot program underway in Nevada are not “blind,” nor are they “fair.” But they seek to be more fair than charging prisoners by the crime.
We commend Nevada’s judicial leaders for taking a step-by-step approach to this controversial change in pretrial release procedures, and we look forward to a full evaluation of its results before they decide whether to adopt it statewide.