In almost 40 percent of observed bail hearings, the judge did not ask the defendant whether they had the ability to pay.
Nebraska law has safeguards that should prevent people from being incarcerated solely because they cannot afford a fee or fine. Some include statutes that require considering a person’s ability to pay a cash bond when imposing pretrial bond conditions and provide alternatives for individuals unable to pay fines or costs. Although present in state statute, judges across Nebraska apply the laws differently, and many Nebraskans who are financially struggling are incarcerated for their inability to pay. The American Civil Liberties of Nebraska performed an intensive court watch project between January 2021 and April 2022 to determine if Nebraska laws meant to end debtors’ prisons were being disregarded and to what extent. Observations from 2,300 hearings revealed that judges assign cash bail more than other options, fail to ask about a defendant’s ability to pay, and frequently do not advise them of their rights regarding fines and fees. This report details the happenings in Nebraska courts and offers recommendations to achieve a just system that is not dependent on an individual’s finances.
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- Only 18 percent of people that judges did not find to be dangerous or a flight risk were released on their own recognizance.
- 64 percent of people being sentenced to pay a fine made some comment about an inability to pay.
- Individual discretion by judges was attributed to 44 percent of differences in judges’ denial rates for release on recognizance.
- Judges should set release on personal recognizance unless there is a reason not to and use the least restrictive conditions as dictated by the law.
- Courts should adopt bench cards to assist judges in conducting assessments.
- Legislators can create a comprehensive list of eligibility criteria for mandatory and presumptive release in place of booking.
- The Judicial Branch should regularly analyze and publish data on bail rates, racial disparities, and bail practices, release on recognizance rates, and include data on individual judges.