The Great Debate: Public Safety vs. Rules on Bail and OR Releases

Over the past several years, states and cities across the country have faced public backlash after court rulings limited the use of cash bail and expanded release on recognizance. Nevada is no exception.

Recent public outcry in Fallon and across Northern Nevada asserts that New River Township Justice Court Judge Benjamin Trotter is not adequately weighing public safety concerns. In the past year, Trotter has granted own recognizance (OR) releases, or release without bail, in several high-level cases, including child sexual assault or gross lewdness cases and drug-related cases, and most recently a case in which a local woman was charged with 29 counts of promoting Child Sexual Assault Material (CSAM), involving children as young as newborns. This case, in particular, has intensified public concern over how release decisions are being made in serious offenses.

Opposition to OR releases is escalating as states implement expanded release policies and the public grapples with the potential risk posed by defendants released pretrial.

The 2020 Nevada Supreme Court’s decision in Valdez-Jimenez v. Eighth Judicial District Court significantly changed how bail is applied in Nevada courts. Trotter, who said he is governed by the Rules of Judicial Conduct, stated that the ruling flipped the tables on consideration of bail versus own-recognizance (OR) release.

A significant issue with the ruling is the scope of judicial discretion and how it is interpreted. Whether an OR release is granted can vary by courtroom, leading to different outcomes for similar cases and fueling ongoing debate over how to balance constitutional protections with public safety.

In response to concerns over OR releases in high-level cases, Trotter explained that prior to the decision, requiring bail was expected, and “good cause” was all that was needed to set bail at any amount. “Bail was often used as a mechanism for keeping a defendant in jail,” said Trotter.

Judges are now required to consider multiple factors when determining bail or release, including ties to the community, ability to post bail, financial resources, criminal history, history of failing to appear, and employment status. “Most of the factors to consider are provided to the judge via a pretrial release assessment done in our community by our pretrial supervision department, Court Services,” Trotter explained.

While judges must also weigh the nature of the charges, that is only one factor in the determination. “After Valdez-Jimenez, it became incumbent upon the prosecution to justify requiring bail of any sort,” Trotter said. “This decision was not a request of the lower courts but a mandate.”

That interpretation, however, is not universally shared, and has become a central point of disagreement in Churchill and surrounding counties.

Many in the community are questioning how charges involving the sexual assault of a child do not constitute a significant risk to the community, and how cases involving dozens of counts of child exploitation would not weigh more heavily in a bail decision.

According to Trotter, “Without notable justification a judge cannot set bail that is unachievable by the defendant except for murder, where bail is not required at all.” Most defendants in Churchill County courts have limited financial resources and qualify for a public defender, meaning they cannot afford high bail and are often granted OR release in Justice Court.

“If bail must be set at a reachable amount in most cases, its community protection features become limited,” Trotter explained. “In order to do otherwise a judge must state the reason he/she is not following Valdez-Jimenez… Whether a judge agrees with the decision is irrelevant; the judge must comply.” 

Another area of criticism involves the conditions placed on defendants released on OR. In some cases, supervision through Court Services is not included. In the CSAM case, the defendant was ordered to have no contact with children and was prohibited from accessing pornographic or fetish websites. Critics argue that those conditions are difficult, if not impossible, to effectively monitor, raising questions about how violations would be detected before additional harm occurs.

In Churchill County, the perceived impact of the Valdez-Jimenez ruling is playing out both in the courtroom and in the court of public opinion. Critics argue that, regardless of due process protections, including the presumption of innocence, individuals accused of high-level crimes should be subject to bail, often at higher amounts.

Former Justice of the Peace candidate and Court Services Director Brenda Ingram, said during her campaign that Trotter was too loosely interpreting the ruling. “He has interpreted the law to mean he has to release these people, and that is absolutely not the case.” 

Still, many argue the severity of the alleged crime should carry greater weight in bail decisions.

The result is an ongoing divide over how Valdez-Jimenez should be applied, and whether its interpretation is being carried out as intended, or stretched in ways that leave critical decisions dependent on the courtroom rather than the case.

Confident in his interpretation of the ruling, Trotter said he welcomes the public into his courtroom. “I would love it if people came in or jumped on zoom to watch their court.”