Nevada’s courts are now a year into a pilot program that dramatically changes how judges decide which defendants should have to post bail and which should just be freed without having to pay.
Washoe District Judge Elliott Sattler said historically, judges have looked at what the defendant is charged with and set bail according to a schedule based on the alleged crime.
The new system looks instead at the defendant and assesses whether that person is likely to show up for court and whether or not he or she is a danger to the community if released.
He and Supreme Court Justices Jim Hardesty and Michael Cherry all argue the long-standing system doesn’t look at those factors and so, whether the defendant gets out depends solely on whether that person has the money or collateral to make bail.
“For the poor, bail means jail,” said Cherry in the Supreme Court’s annual report released just this month. “Our judges do not 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.”
Sattler said the goal of the pre-trial release program is, “to see that we do have just the right people in jail and nobody else.”
All courts in Washoe County are participating in the program including municipal and JP courts as well as district courts as are the courts in White Pine County. In Clark County, four JP courts are participating.
Carson Justice of the Peace John Tatro said studies show keeping people in jail even a few days, “can have a serious impact on their future.”
“Are they a threat to re-offend if they get out and will they show up in court?” he said. “That’s really hard for guys like me who’ve been in this business 23 years. We were taught to look at the crime.”
Heather Condon, who manages pre-trial release in Washoe County, said after a year, the program seems to be doing what it was intended to. She said the assessment form is a list of a dozen questions to help the judge decide what to do such as whether there are prior misdemeanor or felony convictions, whether that defendant has failed to appear for court in the past, employment status and length of residence in the area as well as whether that person has a substance abuse problem.
That score puts them in one of three color-coded categories. Green is for those least likely to be a problem, yellow’s for those the judges need to look at as possibly needing some conditions such as drug testing and red’s for those at higher risk that require judicial review and likely, bail.
She said when the pilot program started, one issue raised was whether this would reduce jail populations.
She said that really hasn’t happened, that the Washoe County jail population has remained fairly stable.
“What we hope to see is that we do have just the right people in jail and nobody else,” she said.
Sattler said the assessment is a tool to help judges, but they’re still able to make their own decision about each defendant. She said it doesn’t replace their judgment.
“It’s important to know that it’s evidence based, not just what your gut tells you,” he said adding in many cases, the assessment contains information judges have never had access to before.
Hardesty said until they had this risk assessment tool, “many of the judges in this state knew very little about the defendant when they made their initial appearance.”
They say it’s resulting in many more defendants being released on their own recognizance. Many of those are people who would still have gotten out, but only after posting bail.
According to data from Condon’s office, the Failure to Appear rate has been in the teens since the pilot started in October 2016, in some months, in single digit percentages.
“If you release them quick, these same people will keep their job, they won’t commit a new crime and they’ll show up in court,” said Tatro.
Hardesty said everyone involved in the pilot says it’s helpful in making pre-trial release decisions, “and urge that the process continue.”
In that case, he said, it would be his plan to present recommendations to the Supreme Court as a whole to adopt the program statewide.