Nevada Supreme Court issues sweeping change in bail procedures

In a 6-1 decision, the Nevada Supreme Court has ordered major changes in how Nevada’s bail system works.

The Nevada Constitution gives all defendants the right to “reasonable” bail unless they are charged with first-degree murder or a capital offense, requiring the state to prove, “by clear and convincing evidence” that it is necessary to ensure the defendant will show up for court or to protect the safety of the community, including that of the victim and his or her family.

But the statute also requires a showing of “good cause” before a person can be released without bail. The opinion ruled that part of the statute unconstitutional.

In the case of Aaron Frye and Jose Valdez-Jimenez, the court agreed with petitioners’ lawyers including the Clark County Public Defenders that their bail was set without a fair hearing and set at levels neither of the two defendants could afford.

Defense lawyers argued that $250,000 bail for Frye and $40,000 for Jimenez was far more than either could afford, effectively violating their due process rights because “unaffordable bail is equivalent to a pretrial detention order.”

The court agreed that, “because Nevada’s current statutory scheme for pretrial release makes money bail the presumption, required the defendant to show good cause for release on nonmonetary conditions and lacks procedural safeguards, it is unconstitutional.”

The state, however, argued that the issue in both those two cases is moot and, therefore, beyond the reach of the high court because both men have since pleaded guilty and been sentenced to prison. Frye is serving a potential 30-year sentence and Jimenez up to 10 years for burglary. Frye’s specific crime was not listed in the public prison record.

The majority of the seven-member court agreed to take up the issue despite the fact it won’t impact the defendants in those two cases, reasoning that it raises issues likely to come back in numerous future cases and that the issue is of widespread importance affecting many arrestees and questioning the constitutionality of Nevada’s bail system.

“Unless this right to bail before trial is preserved, the presumption of innocence, secured only after centuries of struggle, would lose its meaning,” the opinion says quoting a1951 federal ruling.

The opinion by Justice Jim Hardesty points out that, because the two cases were brought in a grand jury indictment, the defendants weren’t even there when their bail was set and had no opportunity to challenge the amounts. The opinion says when a defendant is in custody after indictment, “he or she must be brought promptly before the district court for an individualized custody status determination.”

In that hearing, they directed judges to consider the defendant’s circumstances including character, ties to the community and criminal history as well as the potential sentence if convicted. They said the judge must also consider whether release on personal recognizance or on nonmonetary conditions would reasonably ensure the defendant’s attendance in court. If so, they said no bail should be set, “as any amount of bail would be excessive.”

If not and the court deems bail necessary, the opinion says the judge must determine the amount of bail needed including taking the defendant’s financial resources into consideration.

The opinion adopts the federal standard allowing court to detain a defendant if no release conditions would reasonably ensure the safety of the community but only after a “full blown adversary hearing” in which the defendant would be represented by counsel and allowed present witnesses and evidence. The government would be required to meet the “clear and convincing” standard that no pretrial release conditions would assure the safety of the community and victims.

In addition, the district court would be required to make findings of fact and state its reasons for bail decisions on the record.

“Bail may be imposed only where it is necessary to reasonably ensure the defendant’s appearance at court proceedings or to protect the community, including the victim and the victim’s family,” the opinion concludes.

The lone dissenter was Chief Justice Kris Pickering who agreed with the state prosecution arguments that those two cases are moot.

“To be clear: I agree with my colleagues as to the importance of prompt and constitutionally conducted pretrial detention and release decisions,” she wrote.

But she pointed out that Clark County has revamped its pretrial custody and bail procedures and created an Initial Appearance Court that reviews custody and bail status, often in just hours after arrest.

She also said the Legislature has created a committee to examine and recommend legislation regarding pretrial release of defendants.

She concluded that, in view of those efforts and changes made by the high court in procedures, she would deny the petition at this point and allow lawmakers to resolve the issues in the 2021 Legislature.