by Douglas Ankney

In a case of first impression, the Supreme Court of Nevada ruled that bail determinations for pretrial detainees requires due process, announced the procedures to be followed, and severed unconstitutional language from NRS 178.4851(1).

The State obtained felony indictments against Aaron Frye and Jose Valdez-Jimenez, and the district court set bail in the amounts requested by the State: $250,000 for Frye and $40,000 for Valdez-Jimenez. Neither Frye nor Valdez-Jimenez was present when the district court set bail.

After Frye and Valdez-Jimenez learned of their bail amounts at arraignment, they moved to vacate or reduce the amounts. In their motions, they argued that the amounts were excessive, and the bail process violated their right to due process and equal protection. They argued that because they could not afford the bail, the order setting bail was tantamount to a detention order; therefore, they were entitled to an adversarial hearing before the court could set bail.

The district court held hearings on the motions and denied them. Both men filed petitions for writs of mandamus seeking an order commanding the district court to afford them the relief they sought in their motions. The Nevada Supreme Court consolidated their petitions for disposition.

The Court observed that “Article 1, section 7 of the Nevada Constitution creates a right to bail before conviction: All persons shall be bailable by sufficient sureties; unless for Capital Offenses or murders punishable by life imprisonment without possibility of parole when the proof is evident or the presumption great.” Additionally, “[b]ail must not be in a prohibitory amount, more than the accused can reasonably be expected under the circumstances to give, for if so it is substantially a denial of bail.” Ex parte Malley, 256 P. 512 (Nev. 1927).

The purpose of bail in Nevada is (1) to ensure the presence of the accused when and where demanded by the court, Malley, and (2) to protect the community, including the victim and the victim’s family, Nev. Const. art. 1, § 8A(1)(C). Thus, to be constitutional, the district courts must not set bail (except for Capital Offenses and specified murder offenses) in an amount greater than necessary to ensure the presence of the accused and to protect the community.

Pretrial detainees who have not been convicted of any crime have an interest in their liberty. Stack v. Boyle, 342 U.S. 1 (1951). This liberty interest is fundamental. United States v. Salerno, 481 U.S. 739 (1987). Because the interest in liberty is fundamental, substantive due process requires a compelling governmental interest before any infringement upon that liberty may be imposed. Id. When the amount of bail is more than the detainee can afford, it operates as a detention order because it results in the continued detention of the detainee. Therefore, the Court concluded that substantive due process demands that bail determinations be subject to the same procedural due process protections as other deprivations of liberty.

The Court then set forth the “procedural requirements attendant to that decision.” If indicted defendants remain in custody, they must be brought promptly before district courts for an individualized custody status determination. District courts are to first determine if bail is necessary since, in Nevada, many cases allow the detainee to be released on his or her own recognizance or other nonmonetary terms. In such cases, any amount of bail would be “greater than necessary” and unconstitutional. The detainee has a right to counsel at the hearing and a right to testify and present evidence at the hearing. The State has the burden of proving by clear and convincing evidence that release on personal recognizance or other nonmonetary conditions are insufficient to secure the State’s interests, i.e., ensure the detainee’s presence and to protect the community.

The State also must prove by clear and convincing evidence that its requested bail amount is no more than necessary to secure its interests. Factors to be considered in determining bail or other release include: the detainee’s ties to the community, employment, court history, current charged offense, and potential penalties if convicted. The district court must make findings of fact and must state its reasons for the bail decision.

The Nevada Supreme Court also severed the “good cause” language from NRS 178.4851(1), which reads: “Upon showing of good cause, a court may release without bail any person entitled to bail 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.”

The Court determined that the good-cause requirement before releasing a person on nonmonetary conditions undermines the constitutional right to non-excessive bail because it excuses courts from considering less restrictive conditions before determining that bail is necessary. And the good-cause requirement relieves the State of its burden to prove that bail is necessary to secure its interests. Courts may sever constitutionally offensive language from a statute if the remaining language of the statute can be given legal effect and it accords with legislative intent. Cty. of Clark v. City of Las Vegas, 550 P.2d 779 (Nev. 1976).

Accordingly, the Court severed the “good cause” language from NRS 178.4851(1) but denied the petitions for writs of mandamus because the petitioners had already been convicted, and the Court could order no relief for them. See: Valdez-Jimenez v. Eighth Judicial Dist. Court of Nev., 460 P.3d 976 (Nev. 2020).

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