In our criminal justice system, one of the hardest things to understand is if you are presumed innocent until proven guilty, why are some people detained in jail while they wait for their trial? It’s a good question that unfortunately doesn’t have a simple answer. However, thanks to a recent Nevada Supreme Court decision, this should change for many people.

Undoubtedly, being locked up waiting for trial can cause a potentially innocent person to lose their job, housing, and/or relationships. But, if the Judges in our community truly follow the requirements in the Supreme Court’s decision, there will be a lot less people waiting for trial in custody.

In general, unless you are accused of murder, upon being arrested, you have a constitutional right (under the Nevada Constitution) to have a court set a bail for your release from custody. The court also has the option to release a person without having to pay any bail–this is called being released on your “own recognizance.”

Unfortunately, in the past, many courts would rarely release a person on their own recognizance unless it was for a very minor crime, like trespassing, shoplifting, or disorderly conduct. Instead, if you were charged with a felony, even if you had no prior arrests, had a job, and lived in Las Vegas your entire life, many courts would still require a person to pay bail in order to get out of jail. Even worse, often the bail would be in an amount too high for the person to afford. Consequently, many were stuck in jail waiting for trial. Sadly, many would take a deal offered by the prosecutor just to get out of custody as quickly as possible.

Although there is way too much to discuss in the Supreme Court’s 21-page decision, the following is a summary of the most important points:

(1) A person who remains in custody following arrest has the right to a prompt, individualized determination on the person’s custody status;

(2) The individualized determination requires a court hearing at which the arrested person has the right to present evidence and reasons why the person should be released without bail (i.e., “own recognizance”);

(3) After considering a laundry list of factors contained in NRS 178.4853, the court may impose bail only if the prosecutor proves by clear and convincing evidence that it is necessary to guarantee the person show up at future court dates or to protect the safety of the community;

(4) If the court determines that bail, rather than nonmonetary conditions (like house arrest, electronic monitoring, stay away orders, etc.) is necessary, the court must consider the person’s financial resources as well as other factors detailed in NRS 178.498 in setting the amount of bail; and lastly,

(5) The court must state its reasons for the bail amount on the record.

You can read the Court’s full decision here: https://law.justia.com/cases/nevada/supreme-court/2020/76417.html

If our Judges truly follow these requirements, there should be a lot less people asking: If I’m innocent, why am I in jail?

At the Nobles & Yanez Law Firm we have fought thousands of times for our clients to be released from custody upon being arrested. If you find yourself in this unfortunate situation, please call us so we can help!