The brutal 2008 attack put then-17-year-old Brittani Marcell in a coma and left her blind in one eye and deaf in one ear. The physical damage forced her to re-learn how to speak, walk and eat. It was only recently her memory recovered sufficiently to give police enough clues, and ingeniously obtained DNA evidence, to arrest and charge Hansen with kidnapping, attempted murder and related crimes.
But too many people are misplacing their anger at what they believe is Hansen’s get-out-of-jail-free card. It should not be aimed at: the recently approved state constitutional amendment that allows no-bond holds for dangerous defendants; the state Supreme Court judges who developed guidelines to help judges employ the new amendment; or the prosecutors and defense attorneys who have been using the new Public Safety Assessment for just a few weeks. Because these do not replace judicial discretion – the ability and responsibility to make tough decisions. Here’s a primer:
The constitutional amendment is designed to ensure defendants are detained prior to trial jail based on evidence of their risk of dangerousness or flight rather than their ability to post a monetary bond. (Under the old system, Brown would have had to set a reasonable bond Hansen could afford.) It does require judges to find clear and convincing evidence “no release conditions will reasonably protect the safety of any other person or the community” before holding them in jail.
The state Supreme Court’s new pretrial detention and release guidelines instruct judges how to comply with the new constitutional amendment.
The assessment has been used by the Bernalillo County Metropolitan and 2nd Judicial District courts since mid-June to rank risk of new criminal activity and failure to appear to help determine if defendants should be released on their own recognizance, with conditions, or held in jail.
In the case of Hansen, who as of Sunday night was still in the Bernalillo County Metropolitan Detention Center, Brown didn’t go easy: Hansen cannot be released until he can find a “responsible citizen” to stay with who will “make sure he lives there, stays there, he’ll never be unaccompanied anywhere.” Brown also ordered GPS monitoring and told Hansen he can’t leave home without permission from pretrial services.
Brown certainly could have justified holding Hansen without bond given the brutality of the attack he is accused of committing – as well as the fact he admitted to battery as a juvenile 17 years ago and has been accused of, but not charged with, beating a pregnant girlfriend in 2004 and raping an ex-girlfriend in 2007. But accusations are simply that, and Hansen has no felony charges or convictions.
It was a tough call Brown will have to live with – that’s what he and other members of the bench are elected to do.
Lawyers, prosecutors and judges have sought a better, more uniform way of handling defendants awaiting trial that takes into account the severity of a crime and risk to the community rather than simply what a defendant can afford to post as bond. Now they have the ability to make decisions on release and a tool to help inform those decisions. And while the assessment does not consider accusations or dropped charges, it does show age, convictions, failures to appear and the severity of the current charge. It is in its infancy and should improve with lessons learned. Like the Hansen case.
In the interim, excoriating the constitutional amendment and guidelines, or the judges we trust are doing their best to follow them, does nothing but undermine public confidence in our judicial system. Instead, here’s a reminder to judges: the guidelines and risk assessment are tools. You can use your discretion when deciding how and where a suspect awaits trial. And voters, if you consistently disagree with a judge’s pretrial decisions, the place to express displeasure is in the voting booth – where it can make a difference.
This editorial first appeared in the Albuquerque Journal. It was written by members of the editorial board and is unsigned as it represents the opinion of the newspaper rather than the writers.