After failing to act in 2019, lawmakers begin revisiting bail reform

During its first legislative interim committee to study bail and the use of pre-trial detention, lawmakers lacked local jail data, analysis on how the current conditions of bail are used across municipalities and the role race, gender or economics play in determining who remains in jail. 

In an interview following a hearing Tuesday, Democratic state Sen. Dallas Harris, who chairs the committee, said the panel is working to collect data and was unsure what all exists. 

“It depends on what data is available,” she said. “I think a lot of jail statistics will be available and be easy to get.”

Other data, she added, like racial breakdowns or the types of offenses people remained incarcerated for prior to trial might be trickier to find, but not impossible. “It’s 2020 and I don’t think anything is unstudyable,” she said.

On its first meeting, the interim committee discussed national trends on bail reform and what practices Nevada uses to ensure defendants who are yet to be convicted of a crime aren’t remaining in detention for prolonged periods of time. 

Even the committee’s overview of Nevada’s pre-trial risk assessment tool, a formula used by judges to determine if a defendant is at risk of not returning to court, didn’t provide data on its effectiveness. 

“You talk about this being evidence-based,” Democratic Assemblywoman Rochelle Nguyen said to a representative of the Administrative Office of the Courts during the presentation. “Where was this data taken from to show this was effective?”

“Are you aware of any statistics on any disparities that were revealed throughout the course of data collection, or do you know if it was considered?” Harris asked. 

In both incidents, John McCormick, the assistant court administrator with the Administrative Office of the Courts, was unable to provide data but assured legislators he’d work to gather it. 

While local and statewide data is important in understanding the bail system and how it is used, Leslie Turner, who heads the Mass Liberation Project with the Progressive Leadership Alliance of Nevada, highlighted the necessity of bringing impacted communities to the table to hear their experiences with bail. 

“It’s really important to include the community … because historically I have not seen that here in Nevada where we are actually included in those discussions,” Turner said. “I think it’s important for the community to give feedback on what keeps us safe.”

According to the U.S. Bureau of Justice Statistics, an estimated 65 percent of jail inmates nationwide are being held in detention prior to trial. Using monetary restrictions or cash bond as a condition of release has resulted in increases to jail populations, reformers argue. 

Amber Widgery, a senior policy specialist with the National Conference of State Legislatures, told lawmakers that between 2012 and 2019 nearly 1,000 bills have been enacted to address bail reform and pretrial detention. More than 160 bills, she added, became law in 2019 alone. 

Reforms have included changing state laws to make sure bail isn’t attached to lower-level crimes, implementing risk assessment tools, and funding pretrial detention services to ensure defendants return to court.

States have also tried to implement policies that require judges to consider less restrictive bail conditions — being released on one’s own recognizance, being placed on house arrest or using monitoring devices — before relying on cash bail.  

Again, lawmakers asked to see data points on the effectiveness of these policies in other states. 

Republican Assemblyman Tom Roberts asked if there were incidents where states passed reforms but then had to reverse those policies. 

Widgery said Alaska has “walked back” some reforms. “They maintained the majority of their pretrial reforms overall but certainly made some adjustments,” she added. “There have certainly been states that have reevaluated and made changes to legislative reforms in the area of pretrial release. But overall, I would say the trend isn’t for states to walk back after implementation.”

Lawmakers’ efforts toward reforming, if not eliminating, the cash bail system in Nevada have been slow. During the 2019 session, three bills aiming to change Nevada’s current bail were introduced. 

All failed. 

In a previous interview, Turner said organizers supporting bail reform opted for the formation of an interim committee to study pretrial detention, as opposed to passing subpar legislation. 

Despite bail reform gaining bipartisan support from progressive groups and conservative organizations alike, it has also received opposition from the bail industry. 

“This is not the community versus the bail bond industry,” Turner said. “This is about systemic change and changing a system that is inherently designed to create this kind of disparity.”

Concerns that manifested in the 2019 session — concerns that plague and sometimes doom potential reforms in other states — boil down to public safety. Those opposed to reform argue the current bail system keeps the community safe. 

While those opposed to bail reform recite anecdotes of people committing crimes after being released on their own recognizance, there is no local data to show the frequency of those incidents. 

Turner countered that it’s time to revisit the question about what is public safety. “We need to dig in deeper to how we define public safety and what that actually means when we say that,” she added. “That seems to be the key thing when people speak on this, keeping the community safe. Well, OK. Talk to the community.”

Democratic Assemblyman Edgar Flores said in future meetings he would like for the bail industry to go over the strategies it deploys to ensure defendants return to court.

The committee is scheduled to meet four times over the next several months and will determine what legislation it will put forward ahead of the 2021 session. Lawmakers have until Sept. 1 to submit any bill draft requests