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High court sets out pretrial detention, release rules

Copyright © 2017 Albuquerque Journal

A new comprehensive set of rules unveiled Monday by the state Supreme Court transforms pretrial release and detention around the state and instructs judges on how to comply with a constitutional amendment passed by voters last year.

The new rules go into effect July 1.

The amendment was designed to ensure that defendants be detained in jail based on evidence of their individual risk of dangerousness or flight, not on their ability to pay a monetary bond.

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The rules include providing new specific guidance for judges to revoke release orders for so-called “turnstile” suspects who commit new crimes while on bond or otherwise violate release orders.

Those who are arrested and detained while on probation or parole wouldn’t be released from jail pending trial without first seeing a judge.

Currently, they “can buy their way out (by posting bond),” said state Supreme Court Chief Justice Charles Daniels on Monday.

New Mexico Supreme Court Chief Justice Charles Daniels speaks to a joint session of the House and Senate at the State Capitol in Santa Fe Thursday. (Eddie Moore/Albuquerque Journal)

Fixed “jailhouse bond” schedules that set a monetary bond based only on the crime will be prohibited. Instead, new rules will permit some people arrested on minor offenses in New Mexico to be automatically released on their personal recognizance from jail pending an initial appearance before a judge. Extremely dangerous defendants can be held without bond.

“New Mexico has now taken two very substantial steps toward better protecting community safety and better administration of justice that’s not based on money. It’s based on fact,” Daniels said in a Journal interview Monday.

The first step was the passage of the constitutional amendment overwhelmingly approved by voters last November, he said. The second, the creation of the new rules and procedures, is the result of two years of study by an ad hoc working group of lawyers, judges, bail bondsmen and others.

“The key to success is in having an immediate evaluation of release conditions, presuming release and providing attorneys to help from the beginning,” said Las Cruces attorney Michael Stout, chair of the New Mexico Public Defender Commission.

Matthew Coyte, president of the New Mexico Criminal Defense Lawyers Association, said the new rules “could be the catalyst for a positive cultural change in the way we address pre-trial detention.”

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“Now, a mechanism exists to detain only the most dangerous people and release those who simply don’t have enough cash. My concern is the courts will enforce one part of the rule, but not the other.”

Bernalillo County District Attorney Raúl Torrez filed a petition earlier this year asking the state’s highest court what prosecutors should or shouldn’t be required to show during pretrial hearings. He has complained some judges have essentially put on “mini-trials” when considering whether to have a suspect detained pending trial.

Michael Patrick, spokesman for the office, said Monday evening, “We’re disappointed in how some of the rules played out but we will continue to push for preventative detention to keep the community safe.” Daniels said judges will still retain the discretion under the new rules on what evidence will be required for the no-bond hearings.

Under the reforms, people arrested on certain petty misdemeanor and misdemeanor offenses in New Mexico will be automatically released on their own recognizance until they have an initial appearance before a judge.

But the Supreme Court excluded 16 offenses, including DWI and domestic violence crimes like aggravated battery or harassment of a household member, that will not be eligible for automatic release.

The state court administration is working to provide broader information about the criminal history of defendants to judges who will make decisions on whether to release a defendant pending trial, and under what conditions.

Daniels said judges feel the pressure of criticism when defendants they release on bond commit new crimes pending trial.

“Now that we have an honest method of having evidence-based decisions to detain someone there should be no pressure on a judge to use dollar bond setting to try to keep a person from getting out and these rules make that clear. Ultimately, the result should be better protection of the community and fairer administration of justice for all the people involved.”

The goal is to offer judges statewide a risk assessment tool, based on facts such as prior criminal history, to help make their release decisions. The courts in Bernalillo County are about to implement a new Public Safety Assessment tool to help in pretrial release decisions.

Meanwhile, the state Department of Public Safety is working on implementing a criminal history clearinghouse system for the courts to access before setting release conditions.

Monetary bail bonds have not been formally abolished, Daniels said. “We’re just saying it cannot be the determining factor.”

“The hardest part is still ahead of us,” he added. “I think the hardest part is going to be changing old habits and changing the culture” inside and outside the judiciary.

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