Mimesis Law
24 June 2017

Breaking News: Treating People Decently Leads To Better Results

December 5, 2016 (Fault Lines) — When charged with a crime, usually the first thing a defendant is concerned with is making bail. Being prosecuted sucks pretty much regardless of circumstances, but it’s far more tolerable if you can sleep in your own bed at night, keep your job, and not be locked in a cage.

On the other side of the coin, bond is supposed to ensure that a) the community is protected and b) the defendant shows up for court. And if you can’t afford it, the thinking goes, the community will be safer if you’re behind bars, and we know you’ll make it to court because the jail would be happy to give you a ride to the courthouse.

In Nevada, an attempt to reform the bail system is going pretty well:

A pilot program testing whether more defendants can be released from jail without paying bail is turning out more successful than even its creators expected.

Supreme Court Justice Jim Hardesty said Nevada’s existing system is based on a criminal defendant posting cash to be released before trial. He said the committee studying the system instead concluded judges should be making pre-trial release decisions based on a risk assessment instrument that evaluates each defendant.

“Risk assessments” don’t always work out too well. Oftentimes, all they do is substitute individual judgment with that of whoever designed the assessment, who can’t be cross-examined. But,

[T]he judge can disregard the score if he believes it doesn’t reflect the risk the individual before the court actually represents. […]

He said it’s a tool for the judge to use, not a requirement.

Which is exactly how it should be used. Here’s how it works:

It assigns points to a defendant based on such things as pending cases against him, age at first arrest, whether he has a history of violent arrests, prior failures to appear and substance abuse history among other things. The higher the number of points defendants get, the more likely they’re to remain in jail.

This makes more sense than simply inflexibly setting the same amount for every instance of particular crime. As long as judges are actually listening to all parties as they recommend bond amounts, this allows judges to apply more nuance to their bond decisions without making them totally arbitrary.

The program has also implemented a number of other reforms in an attempt to have things run better.

[A]nother feature of the program is calling defendants a day or so before their scheduled court appearance to remind them to show up. [Hardesty] said a reminder call in Clark County caught the female defendant just as she was going to University Medical Center for a cesarean section. Except for that call, he said she would have faced an arrest warrant for not showing up and Child Protective Services would have taken her newborn. Instead, the hearing was continued until the new mother could attend.

Which means that a mother wasn’t separated from her newborn, Child Protective Services could focus its resources on its other cases, and the taxpayers of Clark County were spared the expense of housing the defendant and picking up the medical care of a post-op Caesarean patient.

[Hardesty] said Justice of the Peace Stephen Bishop in Ely told him the system has sped up the entire process, allowing defendants to work with their lawyers and resolve cases more rapidly. He said he has had no defendants fail to appear for court thus far.

This also makes sense. Pre-trial release also makes it easier for the defendant to take corrective action while the case proceeds, which could be anything from paying outstanding tickets to help resolve a driving while revoked to completing inpatient rehab to treat a drug addiction.

Of course, high bonds work out really well for prosecutors. If a guy is locked up and can’t pay enough to get out, guilt or innocence often becomes a secondary question. This is especially true when it comes to lower-level offenses. Tell a guy who is trying to not to drop the soap every morning that all he has to do is tell the judge he did it and he can go home, he’ll generally leap at the chance.

It’s encouraging that Nevada is actually trying something new, instead of doing the politically easy thing and treating everyone accused of a crime as if they’re presumed guilty; or worse, as a source of revenue. Apparently, the smooth functioning of the justice system doesn’t require ever harsher conditions for defendants and ever harsher punishments for the convicted. Who woulda thunk it?

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