Nevada Revised Statute 178.4851 provides that a court may release a defendant without bail and may impose reasonable conditions in conjunction with the release to ensure future appearances.
1. Upon a showing of good cause, a court may release without bail any person entitled to bail if it appears to the court that he will appear at all times and places ordered by the court.
2. In releasing a person without bail the court may impose such conditions as it deems necessary to ensure that he will appear at all times and places ordered by the court.
3. Upon showing of good cause, a sheriff or chief of police may release without bail any person charged with a misdemeanor pursuant to standards established by a court of competent jurisdiction.
4. Before any person may be released without bail, he must file with the clerk of the court of competent jurisdiction a signed document stating that:
• He will appear at all times and places as ordered by the court releasing him and as ordered by any court before which the charge is subsequently heard;
• He will comply with the other conditions which have been imposed by the court and are stated in the document;
• If he fails to appear when so ordered and is taken into custody outside of this state, he waives all his rights relating to extradition proceedings; and
• He understands that any court of competent jurisdiction may revoke the order of release without bail and may order him into custody or require him to furnish bail or otherwise ensure his appearance.
5. A person who has failed to appear after being released, either on a bond or undertaking or without bail, is not eligible for a release without bail.
6. If a jurisdiction incurs any costs in returning a person to the jurisdiction to stand trial, the person failing to appear is responsible for paying those costs as restitution. NRS 178.4853
lists the criteria or conditions for release of a person without bail.
“In deciding whether there is good cause to release a person without bail, the court at a minimum shall consider the following factors concerning the person.
• The length of his residence in the community;
• The status and history of his employment;
• His relationships with his spouse and children, parents or other members of his family and with his close friends;
• His reputation, character and mental condition;
• His prior criminal records, including any record of his appearing or failing to appear after release or bail or without bail;
• The identity of responsible members of the community who would vouch for the defendant’s reliability;
• The nature of the offense with which he is charged, the apparent probability of conviction and the likely sentence, insofar as these factors relate to the risk of his not appearing;
• The nature and seriousness of the danger to any person or the community that would be posed by the person’s release;
• The likelihood of more criminal activity by the person after he is released; and
• Any other factors concerning his ties to the community or bearing on the risk that he may willfully fail to appear.”NRS 178.4989
lists additional considerations for a magistrate or judge to consider when determining an appropriate amount for bail.
“If the defendant is admitted to bail, the bail must be set at an amount which, in the judgment of the magistrate, will reasonably ensure the appearance of the defendant and the safety of other persons and of the community, having regard to:
• The nature and circumstances of the offenses charged;
• The financial ability of the defendant to give bail;
• The character of the defendant, and
• The factors listed in NRS 178.4853.”
Lastly, NRS 178.499 provides for the increase in the amount of bail should the court deem it necessary or appropriate after hearing actual evidence or should the circumstances warrant it.
• At any time after a district or justice, court has ordered bail to be set at a specific amount, and before acquittal or conviction, the court may upon its own motion or upon motion of the district attorney and after notice to the defendant or to his counsel, increase the amount of bail for good cause shown.
• If the defendant has been released on bail prior to the time when the motion to increase bail is granted, the defendant shall either return to custody or give the additional amount of bail.”
The Defendant submits that a release on recognizance is appropriate in this case after weighing the statutory factors regarding the setting of bail. In the case of In the Matter of Jagales, 44 Nev. 370, 371, 195 P. 808, 808-809 (1921) the Nevada Supreme Court held:
“The Constitution provides (Art 1, §6
) that excessive bail shall not be required. In reaching a conclusion as to what is reasonable bail, a court should consider that the object of bail is simply to assure the presence of the accused for trial; also, the nature of the offense charged, the penalty which may be inflicted, the probability of the appearance of the accused, his pecuniary condition, his character and reputation, and the circumstances surrounding the case relative to the likelihood of conviction….There are those who deem it proper to fix the bonds of all persons charged with crime in a sum so great as to preclude its being given, but it was the obviation of such a consequence that prompted the provision in our Constitution against excessive bail. In other words, the idea was that the punishment, if there is to by any, should follow conviction, and not both precede and follow it, or be inflicted in spite of possible acquittal.”
The right to reasonable bail is so important that bail may even be set following actual conviction subject only to the right of the judge to determine if the release of the convicted defendant would pose a substantial risk of danger to the community or flight. See In Re Austing, 86 Nev. 798, 477 P2d 873 (1970).
Notably, the Nevada Supreme Court in April of 2020 issued an opinion of Jose Vadez-Jimmenez, 136 Nev., Advance Opinion 20 (April 9, 2020) which has an effect on every in-custody individual and their bail status as well as what the procedures are that are necessary to comply with the bail statutes. The Nevada Supreme Court in Valdez-Jimmenez opined that:
When bail is set at an amount greater than necessary to serve the purposes of bail, it effectively denies the defendant his or her rights under the Nevada Constitution to be "bailable by sufficient sureties" and for bail not to be excessive; Thus, bail may be imposed only where it is necessary to reasonably ensure the defendant's appearance at court proceedings or to protect the community, including the victim and the victim's family. Because of the important liberty interest at stake when bail has the effect of detaining an individual pending trial, we hold that a defendant who remains in custody after an arrest is entitled to an individualized hearing at which the State must prove by clear and convincing evidence that bail, rather than less restrictive conditions, is necessary to ensure the defendant's appearance at future court proceedings or to protect the safety of the community, and the district court must state its findings and reasons for the bail decision on the record.