COVID-19 UPDATE: Inmates may be able to get their sentences modified due to coronavirus being so easily contagious in jails and prisons. Vulnerable inmates with asthma or diabetes or who are elderly are particularly at risk. Judges may agree to release certain inmates from custody early, especially if their sentence ends soon. Or else judges may agree to allow certain inmates to serve the sentence under house arrest in quarantine. The inmate's criminal defense attorney can file a motion to modify the sentence to ask the judge for early release or home confinement.
It is an uphill battle for defendants in Nevada criminal cases to have their sentences shortened, but it is possible. Four methods of trying to get sentences shortened include:
- A motion to modify the sentence;
- A Nevada appeal of the sentence;
- A Nevada commutation application; or
- A Nevada petition for writ of habeas corpus
1. A motion to modify a criminal sentence in Nevada
A motion to modify a criminal sentence under NRS 176.555 is when a defendant (or his/her attorney) asks the court to change the sentence on the grounds that it was illegal. Three circumstances where a sentence may be unlawful are:
- The sentence that the judge ordered is different than the sentence being imposed;
- The penalties are harsher than what the criminal statute allows; or
- The sentence was not calculated accurately
Defendants may file a motion to modify an illegal sentence pursuant to NRS 179.555 at anytime -- there is no time limit.
2. Appealing a criminal sentence in Nevada
An appeal is when a defendant asks a higher court to review the trial court's ruling. In the same way defendants may appeal their convictions after being found guilty at trial, defendants can also appeal their sentences.
For example, defendants sentenced in Las Vegas Justice Court would appeal to the Eighth Judicial District Court. And defendants sentenced in the Eighth Judicial District Court would appeal to the Nevada Supreme Court.
The general rule is that defendants have 30 days after the case's entry of judgment to file a "notice of appeal." At that point the court would prepare a "record" of the case (which includes transcripts of the proceedings, such as the sentencing hearing). Then the defendant would have 120 days to file the "appellate brief" that argues why the appellate judges should lower the sentence.
The prosecution has the opportunity to file a response, and then the defendant can reply to that response. The appellate court may elect to hold oral arguments: This is where the defense attorney and prosecution would argue for and against a sentence modification, respectively. Finally, the appellate court judges would decide either to affirm the original sentence or remand the case down to the trial court to modify the sentence.
3. Commutation in Nevada
Defendants may apply to the Nevada Pardons Board for a commutation (reduction) of sentence. There are four main situations where the Board may choose to commute a sentence:
- The defendant is in prison, and he/she is not up for parole less than one (1) year after the date of the next Pardons Board meeting. But even then, defendants may be able to get a commutation sooner by showing "extraordinary circumstances."
- The defendant is out on parole, and the defendant served at least 10 years of a life sentence or one-half of a non-life sentence.
- The defendant is on death row, and the defendant was under 18 at the time of the crime, or the conviction occurred prior to July 1, 1995.
- The defendant is serving a life sentence without the possibility of parole, and the defendant was under 18 at the time of the crime, or the conviction occurred prior to July 1, 1995.
4. A writ of habeas corpus in Nevada
Defendants typically have one year after the judgment of conviction to file a writ of habeas corpus with the Nevada Supreme Court. This writ claims that the defendant's sentence is invalid because of either:
- The trial court overstepped the bounds of its jurisdiction;
- Even if the sentence was legal when the trial court handed it down, circumstances changed since then that justifies the defendant being released;
- Defective legal procedures void the sentence;
- The sentence is illegal;
- The defendant is being illegally detained by the warden;
- No judgment, order, or law authorized the sentence;
- There was no probable cause to incarcerate the defendant;
- The law that caused the defendant to be convicted and sentenced is unconstitutional or applied in an unconstitutional way; or
- The defendant was deprived of his/her constitutional rights