AB 125 Would Implement the New Mexico Bail System in Nevada

Eliminating money bail and going to the system of risk-based preventative detention has been the trend over the last few years.  Unfortunately, reformers aren’t mentioning that the solution, the system of risk-based preventative detention, has been unraveling at its core.  Unfortunately, AB 125 implements a version of this system, most closely aligned with what happened in New Mexico, where, as a result, crime has spiraled out of control.

Assembly Bill 125 creates a right to an affordable bail in Nevada.  This means everyone but those who can be detained without bail under the State Constitution will freed without having to post any type of bail pending trial.  The language contained in AB 125 is the exact language that appears in the New Jersey statute, the Washington, D.C. statute, and the New Mexico court rules: “A defendant who is eligible for pretrial release must not be detained solely because the defendant is financially incapable of paying the amount of any monetary bail or secured bond.”

Practically, what does this mean?  It means if a judge sets a bail, and a defendant cannot afford it, they get out of jail anyway.  In other words, an unposted bail cannot detain except in denial of bail cases.  The offenses for which bail may be denied are specified in Section 7 of the Nevada Constitution: “All persons shall be bailable by sufficient sureties; unless for Capital Offenses or murders punishable by life imprisonment without possibility of parole when the proof is evident or the presumption great.”

So, everyone but capital murder is going to get out of jail pending trial.  Of course, if Nevada wanted to go to the no money bail system, they may want to think about the fact that both New Jersey and New Mexico, the only states to go to this system since the federal system was implemented in 1984, had to change their state constitutions to expand the class of offenders eligible for detention without bail, also called preventative detention.

Facing heavy opposition in the Assembly, the sponsors tried to amend around all of the various concerns.  Importantly, however, they missed the big picture which is you cannot implement the no money bail system without millions of dollars and a change to the Nevada constitution.  Both systems rely heavily on the expansion of pretrial services to supervise the defendants who will no longer be posting bail.  The Nevada Legislature has allocated nothing toward this purpose.

New Mexico’s system is similar to what AB 125 is insofar as New Mexico’s system was implemented by court rule, there was no funding for District Attorneys to conduct the preventative detention (denying bail) hearings, and there was no funding for pretrial services.

In addition, these systems rely on a pretrial risk assessment algorithm, which has been rejected by 110 national civil rights groups, and more than 80 other independent organizations.  While Justice Hardesty proceeded forward to implement a pretrial risk assessment in Nevada, importantly, the committee he appointed to study Nevada’s bail system considered the no money bail system being proposed by AB 125 and rejected it in favor of implementing the risk assessment process.

If you need any evidence of the failings of the New Mexico system, look no further than the case of Darian Bashir.  If this case happened in Nevada today, the District Attorney could seek preventative detention only on the third charge, or, if the District Attorney failed to obtain preventative detention, a judge could then set an appropriately high bond.  Under AB 125, a prosecutor would have to win a preventative detention motion by proof of clear and convincing evidence, otherwise the defendants would walk out for free.

Next, AB 125 in requiring an affordable bail appears to over-rule Section 8A(3) of the State Constitution, which concerns victims’ rights.  That section reads: “To have the safety of the victim and the victim’s family considered as a factor in fixing the amount of bail and release conditions for the defendant.”  First, this requires the fixing of an amount of bail.  The language above presumes that the only standard will be what the defendant cannot afford, and thus if the safety of the victim of victim’s family were to require a higher bail than the defendant can afford, then it cannot be imposed.  We think Section 8A(3) conflicts with AB 125 as currently drafted.

Finally, we cannot overlook the opposition of the Nevada Judges of Limited Jurisdiction, who oppose AB 125.  Said the judges about AB 125: "it will undoubtably exacerbate the 'revolving jail door' for re-arrests on failure-to-appear warrants and new charges."

The no money bail system is a failed policy.  We instead believe change should happen within the existing constitutional framework, and we encourage the legislature to take a serious look at Nevada’s bail system to define the problems and then come up with reasonable solutions to those problems.  Instead, we think AB 125 is throwing darts at a dartboard, hoping that the results will be good, when in fact, based on substantial evidence from other states, we know the results will be nothing but bad.