PRETRIAL RELEASE OUTCOMES STUDIED BY NEVADA JUDICIARY
By Sheila Freed
Lutheran-Episcopal Advocacy in Nevada is proud to be part of a movement that could radically change the justice system in this state. The proposed changes line up beautifully with the ELCA Social Statement, “The Church and C criminal Justice: Hearing the Cries” (2013).
James Hardesty, Associate Chief Justice of the Nevada Supreme court, spoke to members of LEAN in May. Then at the Sierra Pacific Synod Assembly in June, the featured speaker at the LEAN-LOPP Advocacy Breakfast was Washoe County Public Defender Jeremy Bosler. Justice Hardesty has worked for many years to make the criminal justice system in Nevada fairer and more efficient. As the Public Defender, Mr. Bosler sees first-hand how the justice system is much harsher on the poor.
Both Mr. Bosler and Justice Hardesty spoke about something lawyers call “pretrial release,” which for most people means making bail. A person gets arrested and either is able to muster the money to bail out or raise enough to post a portion of the bail and get out on bond. It goes without saying that the bail system works against those who lack the financial resources to make bail. Justice Hardesty pointed out that the system also releases the wrong kinds of people. He used the example of a drug dealer, who can easily raise cash and therefore is back on the street within hours, as against a low-income single parent, who writes a bad check. When that person must remain in jail, someone must be found to care for children, a job can be lost, and more. Judge Hardesty reminded the audience that although both the drug dealer and the single parent enjoy the same legal and constitutional presumption of innocence, the negative consequences of arrest fall disproportionately on one. Mr. Bosler noted that simply remaining in jail for more than a few days actually increases the likelihood that a person will commit another crime. The reason is that the “pro-social connections” we all have in our daily routines begin to wither.
Many jurisdictions around the country have looked at the bail system and concluded that it isn’t fair. Furthermore, it doesn’t work. Justice Hardesty said that the federal courts have concluded that “a money bail system is unconstitutional.” He cited a little known fact: In Nevada, it can cost a different amount of bail for the same offense, depending on what jurisdiction you’re in. Washington, D.C., the states of Kentucky and Ohio have all moved to an “evidence-based” pretrial release system. Their experiences are that if released with no bail, most people appear for court. In Washington D.C., 92% appear, a higher percentage than with the bail system.
Justice Hardesty and his colleagues on the Supreme Court are now studying how moving to an evidence-based system would work in Nevada. The key questions a judge must decide are whether the arrestee is a flight risk, and whether he or she is a danger to the community. If neither is true, release on one’s “own recognizance” is appropriate. In some cases, a person is neither a flight risk nor a danger to the community, but should not be released unsupervised because they are addicted or mentally ill or otherwise not functioning well. Judges have authority to release that person with conditions. So a release with a requirement to go into treatment could be issued. The justices have reviewed various “assessment tools” used by other courts to determine the best course of action for a particular person. In July, several courts around Nevada will begin “field testing” the assessment tools. Washoe and Clark District Courts are among those participating. At some point, the Supreme Court will issue rules that will standardize pretrial release practices throughout the state.
Judge Hardesty noted that no legislative action will be required to make the change; judges now have discretion to release people on their own recognizance, and often do. Bail bondsmen are understandably against eliminating bail for most arrestees , and some legislators could try to stop the change because they don’t want to appear “soft on crime.” Judge Hardesty urged LEAN to participate in the Court’s study and discussion of this topic. To learn more, go to http://nvcourts.gov/AOC/Committees_and_Commissions/Evidence/Overview/. For all details, click on “Documents and Forms” to the right. Parishioners are invited to join the dialog by contacting LEAN Advocate, Rev. Mike Patterson, at firstname.lastname@example.org.