In the future, incarcerated individuals will be assessed for likelihood of appearing for future court hearings and whether they are a danger to the community before being considered for release on a bailable offense, without considering their ability to pay a bail.
In March, the Nevada Supreme Court ordered a statewide implementation of the Nevada Pretrial Risk Assessment by September 2020 to determine the release of incarcerated individuals.
This comes as a result of a committee who studied evidence-based pretrial release programs to consider alternatives and improvements to the system through evidence-based practices and current risk assessment tools. The committee was chaired by Justice James W. Hardesty and was comprised of rural and urban judges, public defenders, district attorneys, pretrial services representatives, county representatives and other stakeholders.
The supreme court order states that “nationwide, courts are moving towards the use of evidence-based risk assessment tools because they guarantee that a pretrial release decision is based on the individual’s risk of failure to appear or threat to public safety rather than the individual’s ability to pay bail, thus instilling greater fairness and consistency into the process.”
Currently a judge can grant an individual release from incarceration for any person charged with a bailable offense “if it appears to the court that it can impose conditions on the person that will adequately protect the health, safety and welfare of the community and ensure that the person will appear at all times and places ordered by the court.”
This means that the individual being released from jail may have to follow certain requirements as a condition of their release prior to a court hearing rather than posting bail. The supreme court order states that there has been little uniformity throughout the state as to how these decisions are made and what information is available or used in those decisions.
The pretrial risk assessment tool is an evidence-based risk assessment that evaluates an incarcerated individual based on factors that have been shown to increase or decrease or decrease the risk of an individual’s nonappearance or new criminal behavior following release.
Following the committee study, several courts throughout the state participated in a pilot program to implement and use the risk assessment tool including Washoe County District Court, Washoe County Justice Court, Reno Municipal Court, Sparks Municipal Court, Clark County District Court, Las Vegas Justice Court, Las Vegas Municipal Court, White Pine Justice Court and courts in Douglas and Churchill County.
Based on the results of the study, the committee unanimously voted to recommend that the supreme court enter an order requiring the use of the validated pretrial release assessment tool statewide.
Based on the recommendation of the committee and the result of the pilot program, the Nevada Supreme Court held a public hearing on February 5, 2019 and filed an order adopting statewide use of the Nevada Pretrial Risk Assessment on March 21, 2019, with full implementation to be in effect throughout the state within 18 months (September 21, 2020).
The Nevada Pretrial Risk Assessment assigns points to questions for an individual who has been incarcerated, and consider the most serious charge the defendant has been charged with.
Scoring items include the following: other pending cases at booking, age at first arrest, prior misdemeanor arrests, prior felony/gross misdemeanor arrests, prior arrests-violence, prior failure to appear (FTA) instances in the past 24 months, employment status at arrest, residential status, substance abuse and verified cell phone.
Based on the points assigned during the risk assessment, a person is either determined to be a low, moderate or higher risk level, which may determine whether the individual is released and what conditions are placed on the release.
A judge may override the risk level and release if there are other services needed by the individual or reasons for doing so. Override reasons on the pretrial risk assessment include mental health, disability, gang member, flight risk and other reason to be filled in by the appropriate authority.
This supreme court order was openly opposed by the American Bail Coalition and bail bond companies throughout the state, threatening the business model of the bail bond industry.
The supreme court order leaves courts to figure out how to accommodate the new ruling, with some training and assistance to be provided by the Administrative Office of Courts.
Although such a ruling can be taxing on smaller rural communities, Humboldt County already has some experience navigating pretrial services. Sixth Judicial District Court Judge Michael Montero served on the evidence-based pretrial release committee and was able to acquire a Bureau of Justice Assistance grant for mental health services which incorporates a pretrial assessment component.
In 2017, Sixth Judicial District Court was able to secure funding through the Bureau of Justice Assistance with a 2-year mental health services grant that allowed for a case manager to help those with mental health issues navigate life post-incarceration to reduce recidivism. The grant funding was extended for another year and is set to continue through September 30, 2020.
As part of the mental health services program, Sixth Judicial District Court Case Manager Denni Byrd completes an assessment on as many incarcerated individuals as possible (omitting those who committed violent crimes) to determine their needs after being released from jail.
If an individual qualifies for services through the grant, Byrd works with the individual following their release from jail to help facilitate resources and provide guidance so that they can find food, housing, insurance, mental health services and other identified needs.
Although the mental health services grant allows for case management to assist individuals with acquiring needs, the supreme court order only makes mention of the assessment tool to determine an individual’s release from incarceration.
Montero and Byrd said this grant has helped the court to become familiar with and develop processes for facilitation of a pretrial release program. Although the form Byrd currently uses for pretrial risk assessments is not exactly the same as the new Nevada form, the process may be similar.
Byrd said one of the biggest challenges initially in completing pretrial risk assessments was being able to develop a process to be able to interview incarcerated individuals and identify resources that may help them once released.
“One of the pieces of this that’s huge is Denni getting into the jail, we’ve got her background so she can get criminal histories now,” said Montero. “Just that alone, the ability for someone that’s doing pretrial work to obtain criminal histories and go into the jail and do interviews; this is unprecedented for us in Winnemucca to my knowledge.”
Montero and Byrd hope that this experience can be useful in the future processes of the pretrial risk assessment tool and plan to be a part of the new required process as it’s developed and implemented, although funding and resources for the new requirement have not yet been identified.
Byrd said that in her experience facilitating the grant program, she has seen individuals who have gone through not having housing, employment, appropriate medications and resources to being employed functional members of the community with the assistance of guidance through challenges faced post-incarceration.
Byrd said that many times people who have mental health issues who are on psychotropic drugs are released with a few days of medication and no resources to help them ensure they don’t have a gap in time between the medicine they are given and acquiring a new prescription for their medications, often leading to a continued cycle of re-incarceration.
“If they don’t have direction when they’re released then they go back to what they know and that’s either the streets or drugs or things that lead them astray so it’s about giving them a clear direction of how to get something they need,” said Byrd.
