BAIL REFORM COMES TO NEVADA

By Caroline Lemcke & Nancy Lemcke

Jose Valdez-Jimenez did not fit the profile of someone you would expect to find stealing leggings from Victoria’s Secret or a juicer from Macy’s department store. At 57-years old, “Papi”, as he was known to his family and friends, was a bespectacled Cuban immigrant with head of thinning, wiry grey hair; his slight frame reflected his frail health. A tile setter by trade, Mr. ValdezJimenez worked various low wage jobs to support his wife and two minor children along with his elderly mother.

He was also a career thief.

By the time of his May, 2018 arrest for the leggings and juicer thefts, Mr. Valdez-Jimenez had amassed approximately 23 felony convictions. Most were theft and/or drug related. This, together with his numerous aliases and varying identifying information, made him a poor candidate for pre-trial release. When he was booked into the Clark County Detention Center, law enforcement officials set a money-bail amount of $85,000. The following day, a Las Vegas justice of the peace found probable cause for his arrest and, in Mr. Valdez-Jimenez’s absence, reduced his money-bail to $40,000. Unable to pay that amount, Mr. Valdez- Jimenez remained in custody until three days later, when prosecutors filed charges against him and the presiding judge appointed the Clark County Public Defender to represent him. His attorney immediately asked the court to reduce the $40,000 money-bail to something Mr. Valdez-Jimenez could afford. The court denied the request.

Not long thereafter, the Clark County grand jury indicted Mr. Valdez-Jimenez on several theft-related felonies deriving from the leggings and juicer thefts. Prosecutors obtained an indictment warrant fixing Mr. Valdez-Jimenez’s money-bail at the $40,000 set by the justice of the peace. Still unable to pay that amount to secure his release, Mr. Valdez-Jimenez remained in custody as a trial date was set. Indeed, his lack of financial resources meant he would be relegated to awaiting his trial date from the confines of the Clark County Detention Center. Given his rather prolific criminal history, this did not seem unreasonable.

But the process by which the courts in Clark County regularly set money-bail in amounts unattainable for the indigent had long troubled some of the lawyers in the Clark County Public Defender’s Office. Well before Mr. Valdez-Jimenez’s 2018 arrest, Clark County – like many other jurisdictions throughout the United States – adopted a standardized moneybail schedule in an attempt to bring equity to the pre-trial detention process. Intuitively, scheduled money-bail made sense: money-bail amounts were set according to a fixed schedule based upon the severity of the charged crime. For a low-level felony such as possession of a controlled substance, the scheduled money-bail setting might be $3,000. And it would be $3,000 for everyone charged with that crime – regardless of ability to pay. Only upon a showing of good cause by the accused could the court reduce the money-bail amount or remove it entirely.

As the years passed, public defenders watched in frustration as the poor sat in custody awaiting trial while wealthier, similarly situated defendants simply paid the money-bail amounts required for release. The money-bail schedule, conceived as an instrument of fairness and equity, had become anything but. However, public defenders believed the scheduled money-bail system was only part of a larger problem. The issue of pre-trial detention often centered around a discussion of money-bail without regard to what a particular defendant could pay. Public defenders chafed at the fact that no one was first asking the basic question whether a defendant should be jailed or released pending trial – with or without release conditions such as moneybail.

With Mr. Valdez-Jimenez, public defenders aimed to change that. With the help of Civil Rights Corps, a Washington, D.C.-based civil rights organization, a group of public defenders began challenging the use of scheduled money-bail in Clark County and, more broadly, the process by which money-bail had evolved to operate as a detention mechanism for the poor and a release condition for the wealthy. The result was a series of legal challenges that ended, after nearly two years, in the Nevada Supreme Court. On a crisp afternoon in September, 2019, the Nevada Supreme Court heard oral argument in Valdez- Jimenez v. District Court. Several months later, the high court issued an opinion that dramatically altered the landscape of pre-trial detention in Nevada. The Court ruled that the lower courts could no longer set money-bail without first considering alternate, non-financial release conditions. The Court further held that the lower courts must determine a defendant’s ability to give money-bail before setting financial release conditions. The days of setting money-bail amounts according to offense severity rather than the accused’s ability to pay were, in theory, over.

This past year, the legislature amended Nevada’s pre-trial confinement statutes to comport with the requirements of Valdez-Jimenez. While there may be additional changes still needed, Nevada has taken a big step toward ending poverty-based detention. The issue of pre-trial confinement will never be easy. The courts, prosecutors, and defense attorneys alike must still work to find a way to maintain the delicate balance between ensuring public safety and avoiding the unjust detention of some of the most vulnerable members of our community.

But there is little doubt that, in the wake of Valdez- Jimenez, Nevada is headed in the right direction. “At the end of the day, Valdez-Jimenez was about making sure that we detain only those individuals who genuinely need to be detained before trial. We don’t want wealthy defendants who are a community danger or flight risk to be released simply because they can afford to buy their freedom any more than we want to incarcerate those who are too poor to pay for their release,” says Christy Craig, one of Mr. Valdez-Jimenez’ attorneys and a newly-elected Clark County District Court Judge. Belinda T. Harris, Mr. Valdez-Jimenez’ original public defender – now a North Las Vegas Justice of the Peace – echoes this sentiment. “It is about making our system fairer and more just for everyone, regardless of background, social, or financial status. When this happens, the entire community benefits.”

Indeed, sometimes the best defense is a great offense. And sometimes changing the justice system can happen -- one case at a time.