Judges given more discretion on bail, releasing criminals

Cy Ryan and Erica D. Johnson

Monday, June 9, 2003 | 11:13 a.m.

CARSON CITY -- In a 4-3 ruling, the Nevada Supreme Court has given Clark County judges more discretion in emergencies to grant release without bail to people accused of nonviolent crimes.

District Court judges in Clark County asked the court in September 2002 to amend the judicial rules in Southern Nevada.

A majority of the high court said the new rule, effective June 23, will permit a judge, outside a formal hearing and without conferring with the prosecutor, to reduce bail for people charged with a misdemeanor, gross misdemeanor and nonviolent felony. Judges also may release such defendants without bail. The ruling does not define what constitutes an emergency.

The rule says the judge "must be satisfied that the individual arrested will likely appear in court at the next scheduled appearance date and does not present a threat" while free.

At the next appearance another determination, with the prosecution present, is to be made on bail, according to the new rules.

When an individual is arrested on a violent felony charge, the judge still must give the prosecution the opportunity to have a say before bail is reduced or person is released on his own recognizance.

The order was signed by Justices Miriam Shearing, Myron Leavitt, Bob Rose and Mark Gibbons.

District Attorney David Roger said that while his office accepts the ruling, he is concerned that judges may not have enough information on details such as the defendant's prior convictions when they decide to release an inmate or lower bail.

"We'd like to explore the possibility of other options to ensure that judges receive complete and accurate information at the time they grant such requests," he said.

Roger said he was unclear on what the Supreme Court considered "emergency" situations.

Allen Lichtenstein, general counsel for the American Civil Liberties Union of Nevada, said the ACLU is in favor of getting nonviolent offenders who pose no flight risk out of jail prior to a hearing.

Lichtenstein said the ACLU opposed the previous system, in which prominent attorneys with "connections" could contact judges outside of court and ask that their client be let out of jail.

He said all defendants should be afforded the same opportunity to get out of jail.

"This order memorializes that practice," he said. "We believe that a system that affords that opportunity to all people arrested for nonviolent crimes, regardless of who their lawyer is and which judge a lawyer knows, is a proper system."

Chief Justice Deborah Agosti and Justices Nancy Becker and Bill Maupin all signed dissents.

Agosti said District Court in Clark County "would be better served by rules implementing a program of court supervised review of the bail set against all detained accuseds."

"A properly functioning pretrial release program would ensure a fair review for all prisoners and replace the current practice."

Becker said there should be a statewide rule and clarification of the Code of Judicial Ethics, which governs the conduct of judges.

Maupin suggested creating an on-call system for judges and deputy district attorneys to review informal bail applications.

"In this way general access to bail reductions prior to an initial appearance would be achieved," Maupin said.

Roger said his office already has five to six deputy district attorneys who are on call 24 hours each day to and to assist law enforcement with search warrants and answer legal questions.