As a legislative interim committee studying the use of pre-trial detention wrapped up Monday, lawmakers approved several recommendations to make changes to the state’s bail system.
The committee discussed 19 items that included requiring bail hearings in a timely manner, mandating collection and reporting of pretrial data, and prohibiting standardized bail schedules in favor of individual hearings. The recommendations are expected to be used in drafting legislation for the 2021 Legislative session.
“I think we are going to make some good changes for Nevada,” said Democratic state Sen. Dallas Harris, who chairs the committee. “There is still work that needs to be done. Any bill that is drafted out of these recommendations is still going to need input as we nail down some of the legislative details.”
Lawmakers have struggled to pass reforms to the bail system, and the 2019 session was no different.
After months of tweaks and changes during the 2019 session, legislation failed to gain support from civil rights groups, attorneys and impacted communities proposing changes. Instead lawmakers commissioned an interim study.
During the interim study, the committee assessed minimal data collected from the Nevada Pretrial Risk Assessment Tool, a formula used by judges to determine if a defendant is at risk of not returning to court, and from detention facilities to determine how bail is used and how it affects the community.
Several proposals discussed Monday are designed to codify a recent Nevada Supreme Court decision that ruled bail could only be set when it is necessary to protect the community or to ensure a person returns to court. The ruling requires courts to go through a process before assigning cash bail.
Clark County Public Defenders Christy Craig and Nancy Lemke, both who argued the Jose Valdez-Jimenez case, told the committee in June that some judges are sidestepping the requirements imposed by the Supreme Court.
Proposals to remedy judicial noncompliance include:
- Placing the burden of proof of the necessity of bail on the state and repealing a section of Nevada law that places the burden on the defendant;
- Requiring the court to make clear why it chose to release or detain a defendant prior to trial and specify why any conditions of pretrial release were necessary. In cases when monetary conditions were issued, the court must also specify if it considered the person’s ability to pay;
- Mandating bail hearings to be held in a reasonable time;
- Permitting pretrial detention only when necessary.
Another recommendation discussed Monday would prohibit unattainable conditions of pretrial release or conditions a person cannot comply with, such as requiring a homeless person to have an address. While the proposal was pulled for discussion, it was ultimately tabled.
One proposal, which would have given people who fail to appear in court a 48-hour grace period before a bench warrant is issued, didn’t advance after Democratic state Sen. Melanie Scheible joined the two Republicans lawmakers to vote against the item.
“I think we have enough trouble getting people to court as is and they should be there when they are expected to be there,” said Scheible, a deputy in the Clark County District Attorney’s office.
She worried people would take advantage of the grace period and said she has “rarely seen, if ever seen, a judge issue a bench warrant for an individual who has good contact with their attorney, who has made a good faith representation that they are running late, or have a flat tire or they are sick and have child care issues.”
Scheible argued the recommendation would remove discretion from the judge. As an example, she cited a domestic violence case she was prosecuting when a defendant broke a no-contact order and was asked to appear in court. He failed to appear, which allowed Scheible to secure a bench warrant.
“I believe the intent here is to give people some time to realize they missed a court date and provide them with just a little bit of room to rectify that before a failure to appear warrant is issued,” Harris said. “I’ve heard some concern from community members who feel at 12:01 you may have gotten off work and missed your court date and that second they might possibly pick you up if you get pulled over for something. People might need just a little bit of time to rectify before a warrant goes into effect.”
Assemblyman Edgar Flores, who proposed amending the recommendation to focus on nonviolent misdemeanors, noted it is people from low-income communities who don’t always have legal representation and are often hurt by bench warrants for failing to appear.
“I know folks who will miss court because they had an emergency and couldn’t be there, and now they are paying an attorney $1,000 to quash a warrant when they were already in a difficult position,” he said.
He added that usually in those cases, people are missing court because it was an oversight and they were overwhelmed with other challenges.
Another proposal lawmakers advanced was to reclassify certain traffic offenses and misdemeanors as citations that aren’t punishable with jail time.
Assemblyman Tom Roberts, who voted against the recommendation, said legislation might prevent officers from making arrests when the situation called for it.
Harris said as the bill draft request is being written, lawmakers could always come back and exclude certain traffic offenses and serious misdemeanors.
In addition to approving legislative recommendations, other items the committee approved included drafting a letter to the Nevada Supreme Court urging it to study racial bias in the pretrial risk assessment and submit the report to the Legislature.