The Elimination of "Cash Bail"


Why should you concern yourself with voting in the upcoming Primary Election?  Why should you concern yourself with ensuring that the right candidates are elected to serve on the Nevada Supreme Court? As a Chief Deputy Public Defender, I am tasked with defending people who are accused of committing a crime, ranging from misdemeanor trespass to felony murder, and cannot afford to hire an attorney. Many of those same people are forced to remain in-custody because they do not have the financial resources to post “bail.” 

 

What is “bail”?  When a person is arrested, he/she may be able to post “bail” which generally involves a particular amount of money, which is forfeited by the defendant if he/she does not appear in court for their criminal proceedings. 

 

For instance, if an individual were arrested for a Misdemeanor DUI, bail could be set at $5,000.  The criminal defendant has three options: 1.) Pay $5,000 in cash to the court, in order to be released pending trial.  2.) Pay 15% ($750 + $40 in administrative fees) to a bail bondsman, in order to be released pending trial, or 3.) Remain in custody pending trial.  If a person takes the first option, they potentially could have their money returned at the conclusion of the criminal proceedings.  However, if they utilize the services of the bail bondsman, the money is not returned.  All three scenarios represent an undue burden placed on the person and their family and friends.

 

Locally, groups such as P.L.A.N. (Progressive Leadership Alliance of Nevada), the NAACP Branch #1111 – Las Vegas, Faith Organizing Alliance, the Clark County Black Caucus, and ACLU | Nevada have unsuccessfully lobbied legislators to eradicate the “cash bail” system. 

 

 

 

To relive this burden, which disproportionately impacts the poor, Public Defenders Christy Craig and Nancy Lemke argued before the Nevada Supreme Court that judges ought to have strict guidelines when determining “bail” amounts [Valdez-Jimenez (Jose) vs. District Court (Nevada) C/W 76845].

 

 

 

In writing the majority opinion, Judge James Hardesty said: “Bail serves the important function of allowing a defendant to be released pending trial while at the same time ensuring that he or she will appear at future proceedings and will not pose a danger to the community.  When bail is set in an amount the defendant cannot afford, however, it deprives the defendant of his or her liberty and all its attendant benefits, despite the fact that he or she has not been convicted and is presumed innocent.” 

 

 

 

The Nevada Supreme Court ultimately decreed that bail may only be set when “necessary to reasonably ensure the defendant’s appearance at court proceedings or to protect the community, including the victim and the victim’s family.  Where the defendant presents little to no flight risk or danger to the community, release on personal recognizance or nonmonetary conditions will likely be appropriate, in which case bail in any amount would be excessive.  On the other hand, where the defendant has an extensive history of failing to appear for court proceedings and few ties to the community, bail will likely be necessary.”

 

 

This ruling made by the Nevada Supreme Court outlined specific steps which must be completed when determining “bail”.  These steps include, a “prompt” individualized hearing on custody status, at which the defendant has the right to be represented by an attorney and is also afforded the right to testify or present evidence. During said hearing prosecutors must meet a burden of clear and convincing evidence that a less restrictive alternative will satisfy the interest of the people in ensuring the defendant’s presence and the community’s safety.  Furthermore, District Court judges are now required to “make findings of fact and state its reasons for the bail decision on the record.”

 

This ruling by the Nevada Supreme Court was almost unanimous, the lone dissenting Justice on the Nevada Supreme Court was Justice Kristina Pickering.

 

*This article does not reflect the views and or opinions of the Clark County Public Defender’s Office.

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