For those just waking up to the end cash bail mantra, it’s pretty simple: for one to be in a position to pay cash bail and another not is unconstitutional.  That’s the supposed theory of evil cash bail, and has been the theory since Judge Murphy gave the Civil Rights Corps an unexpected win in the Maurice Walker case, later overturned by the U.S. Court of Appeals for the Eleventh Circuit.  Also recall that the U.S Court of Appeals for the Fifth Circuit has previously found that, regarding the right to an affordable bail, “no such right is in view.”

Last week, another ruling has come down in Nevada on the issue of the affordability question of cash bail in a lesser known case, Valdez-Jimenez (Jose) vs. Dist. Ct. (State) C/W 76845, which has come to the same conclusion…with a twist.

Enter Justice James Hardesty of the Nevada Supreme Court, a known bail reform warrior, loved by the activists, and cherished by the end cash bail movement.  Several years ago, then-Chief Justice Hardesty took to the radio to call for a move to the federal system.  This was premised on the idea of this supposed right to an affordable bail.  At the time, the American Bail Coalition testified before the Nevada Assembly that this was an inappropriate interpretation of law by a sitting Justice that, in fact, was not the law.

Justice Hardesty then penned a letter to the Nevada Assembly in response to such testimony, re-asserting that there is a federal constitutional right to an affordable bail.  The gist was that cash bail is unconstitutional so we need to abandon the right to bail in the Nevada constitution and go to the federal lock everybody up system to make things more fair to people.

“Incarcerating individuals solely because of their inability to pay for their release, whether through the payment of fines, fees, or a cash bond, violates the Equal Protection Clause of the Fourteenth Amendment.” – Justice Hardesty

Of course, the U.S. Court of Appeals for the 5th and 11th Circuits later affirmed that Justice Hardesty’s extra-judicial opinion issued to the Nevada Assembly interpreting federal law, in his effort to try to influence Nevada constitutional and statutory legal policy, was erroneous.

Despite all of that, Justice Hardesty has now taken it upon himself to not only not recuse himself despite his past public comments, but to instead write the majority opinion for the Nevada Supreme Court in the Valdez-Jimenez case.  In this case, Justice Hardesty ruled against himself—or at least what he told the Nevada Legislature.  He held that there is not a right to a bail one can afford, and that instead, the standard for evaluating bail is whether it is excessive or not.

Of course, activist groups and newspapers claim this as a huge victory and are proclaiming a sea change, even after losing the case.  If you read one article closely, you’ll notice that the article does admit that the plaintiffs “technically lost.”  The reality: they didn’t technically lose—they indeed lost.  There is no right to an affordable bail pursuant to the Nevada Constitution.  That was the whole point.

Justice Hardesty, writing for a unanimous Nevada Supreme Court, said: “Though there is no constitutional requirement that bail be in an amount the defendant can afford to pay, see Malley, 50  Nev. at 253-55, 256 P. at 514 (stating ‘a mere inability to procure bail in a certain amount does not of itself make such amount excessive’), consideration of how much the defendant can afford is essential to determining the amount of bail that will reasonably ensure his or her appearance and the safety of the community.”

Justice Hardesty did, however, go a little bit further than he needed to go.

The U.S. Court of Appeals for the Fifth Circuit has said that all that due process requires is a meaningful opportunity to be heard, generally within 48 hours of arrest.  Instead, Justice Hardesty applied a heightened evidentiary standard on prosecutors to prove by clear and convincing evidence the need for bail by, you guessed it, interpreting federal law.  The problem is that he applied the standard for preventative detention (denial of bail) in the federal system to a bail decision under the Eighth Amendment and Nevada Constitution (setting of bail).  Without getting into the nuances of constitutional law, let’s just say that means Justice Hardesty’s interpretation is apples when the U.S. Supreme Court’s opinion would be oranges.

Nonetheless, and despite all of this, a prosecutor in Nevada can still easily request bail, a judge can still grant it, and rather than putting up proof by a preponderance of the evidence a prosecutor will have to get to clear and convincing evidence.  But regardless, all of these findings will rarely be overturned on appeal due to the application of the abuse of discretion standard.

So, we’re right back to where we were—judicial discretion to impose bail that is not affordable, but instead that is merely not excessive.  Said the Court, “where the defendant has an extensive history of failing to appear for court proceedings and few ties to the community, bail will likely be necessary.”

While Justice Hardesty makes a habit of erroneously interpreting federal law, something we hope the Clark County District Attorney will take up with the U.S. Supreme Court, the reality is that Justice Hardesty and the Nevada Supreme just ruled against the very principle of law that lead us down the bail reform path in the first place—that one cannot afford his cash bail, not fair, unconstitutional.  Not so, says Nevada’s leading bail reform warrior, Justice Hardesty.