New rules of criminal procedure were published by the Supreme Court this week to help courts implement the recent constitutional amendment on pre-trial detention. The Journal reported on these rule changes along with an editorial endorsing a new pre-trial risk assessment tool being introduced in Bernalillo County. These changes in how our criminal justice system decides how, and who, to release before they have their day in court will have profound effects on the future of our community.
Historically we have made these release decisions based on how much money a person has, or whether a family member can sign over enough collateral to a private bondsman. The winners in this system have been the bonding companies who have flourished over the decades. The losers come in two categories; the taxpayers who fund the overcrowded jails, and those defendants with insufficient resources to pay for their release (who often spend more time in jail waiting for a trial than they would have ever received as a sentence). This is particularly troubling because national research clearly indicates unnecessary pre-trial detention increases crime rates. Low-level offenders often graduate into serious criminals after being housed for lengthy periods in underfunded county jails. In other words, the system we have been using for years actually makes our community less safe by increasing crime.
We stand at a moment when this illogical way of making release decisions, based on money, can disappear and be replaced with a system that relies on objective factors. This is where the new risk assessment tool developed by the Arnold Foundation comes into play, along with new rules of criminal procedure. If implemented correctly, the vast majority of people charged with non-violent offenses will be released while they wait for their trial. A small minority of people will be held without bond. The community will be safer and money will be saved, but people will complain.
There are powerful voices waiting to attack these initiatives. For example, the bonding industry has a financial interest in the status quo. This was clearly demonstrated last week when (Gerald) Madrid of the Bail Bond Association penned an op-ed criticizing APD’s plans to stop arresting people accused of non-violent misdemeanors (such as shoplifting) but instead issue them a citation with a summons to court. In his letter, Madrid encouraged more arrests and equated pre-trial release with “leniency.” Of course, this turns the system upside down. Releasing people prior to their trial on the least restrictive means available is the law – not an act of “leniency.” It also happens to be helpful in the fight against crime.
Another group of powerful voices against these changes are elected officials who wish to capitalize on crime to further their own political ambitions. Short-sighted politicians will use a “tough on crime” agenda to criticize judges for letting pre-trial detainees out of custody. This approach will undoubtedly rear its head every time a notorious crime takes place in our state.
As these reforms roll out, we will need to understand the motivations behind these critics. When a dramatic crime takes place, as it inevitably will, we must understand what is behind those who advocate for a U-turn.
For judges, this will be a difficult time. It will take courage to move away from a monetary release system. They, too, face re-election, but they must enforce both sides of our new constitutional amendment, regardless of what political pressure is brought to bear. Just as they are required to hold clearly dangerous people without bond, they must also release those who would be out if not for the fact they were poor. Justice should not be something that can be bought.
When bonding companies categorize releases as “lenient” and cynical politicians accuse judges of being “soft on crime,” as a community we must remember the constitution. Ultimately, that is what counts the most.