Copyright © 2018 Albuquerque Journal
In the year before the state Supreme Court implemented a set of rules telling New Mexico judges how to implement sweeping bail reform measures, 2,225 surety bonds were posted in the state’s busiest courthouse.
Over the next 12 months, that number fell by 84 percent to 351, according to Bernalillo County Metropolitan Court officials.
The drop comes as the state joins a growing number of jurisdictions around the country that are shifting away from a monetary bond system in favor of one that proponents say makes decisions about release based on the risk an individual poses.
“We don’t keep people in jail because they’re low-risk and poor; we keep people in jail because they’re dangerous, regardless of what their means are,” said 2nd Judicial District Chief Judge Nan Nash, summarizing the changes.
Under a recent constitutional amendment, New Mexico judges can now detain defendants deemed dangerous or considered to be a flight risk, while landing, as Nash put it, “on the side of release in most cases, with appropriate conditions.”
And after the new system has been in place a little more than a year, Nash said, there are signs that it is working.
But the change is still controversial, and critics insist that judges are releasing too many suspects, often including those charged with violent felonies.
Officials working in the justice system will provide an update on the changes today during a presentation to the legislative Courts, Corrections and Justice Committee.
A risk-based system, proponents say, spares poor people from languishing in jail simply because they are unable to scrape together enough money to post bail. Nationwide data show that the less time a low- or medium-risk defendant spends in jail awaiting trial, the less likely he or she is to re-offend both in the immediate future and years later.
Prosecutors in Bernalillo County agree the system is accomplishing that goal, but they question how many dangerous offenders are being released as a result. The state believes judges are detaining far too few defendants, some of whom might have been effectively detained under the money bond system.
Opponents worried that without a bondsman on their tail, defendants would stop going to their hearings, but court officials say the rate of failure to appear has decreased.
But another concern opponents voiced has materialized: The changes have decimated the state’s bail bond industry, forcing all but 10 bond companies to close shop.
Voting for change
In November 2016, New Mexicans voted overwhelmingly in favor of the constitutional amendment that would drive these changes. A series of Supreme Court rulings to help guide lower courts through implementing the new processes took effect in July 2017.
The ballot measure proposed a change “to protect community safety by granting courts new authority to deny release on bail pending trial for dangerous defendants in felony cases while retaining the right to pretrial release for nondangerous defendants who do not pose a flight risk.”
“We’re reducing the risk and we keep trying to find better ways of reducing the risk while at the same time we’re trying to honor the basic charter of our government: the Constitution,” Supreme Court Justice Charles Daniels said in an interview last month. “The safest thing to do would be to jail all people at birth, and that’s the end of it.”
The Constitution previously guaranteed the right to get out of custody to all defendants, with the exception of those charged in capital cases. Judges who set high bonds with the hope of keeping a person detained were violating the defendants’ rights and their own judicial oath to uphold the law, Daniels – who was a driving force behind the amendment – wrote in an article published in The Judges’ Journal this summer.
Second Judicial District Court Executive Officer Jim Noel said posting a bond imposed no obligation on the bond company to supervise a defendant, only the obligation to produce a defendant who may have already failed to appear. In contrast, defendants sent to pretrial services are actively monitored.
Between fiscal years 2015 and 2018, failures to appear increased in District Court by 2.8 percent, Noel said. In that same period, criminal case filings increased by 33 percent and the number of cases subject to monetary bonds fell by 85 percent.
“Thus, as a proportion of total new criminal cases filed, the FTA rate has actually gone down,” Noel said. “This corresponds directly to the time period in which the constitutional amendment was implemented and the use of monetary bonds substantially decreased.”
Too many released?
As of the end of July, district judges in Bernalillo County have denied a majority of prosecutors’ requests to detain defendants prior to trial. Prosecutors asked judges for detention at the outset of 959 cases. Of those, 359 motions were granted, 503 denied and the rest were withdrawn by the state or were dismissed entirely, according to court officials.
Thomas Outler, deputy district attorney with the 2nd Judicial District Attorney’s Office, said he doesn’t think the system is accomplishing its goal of keeping the right people in jail because the district judges who have the power to do so are detaining too few defendants. A handful of cases have made headlines after a detention motion was denied and a defendant went on to commit additional crimes.
“It’s not fair to the public, because many more offenders are now being released and are able to re-offend or in some other way … have the opportunity to be a danger,” he said. “They were being effectively held under the old bond system.”
He believes voters saw the amendment as a way to enhance public safety by giving judges a new and improved method for keeping more dangerous people in jail.
“What they didn’t understand was there already was a constitutionally problematic, but still a mechanism in place to do that,” he said. “You put a high enough bond on somebody, unless they’re, you know, fabulously funded in some way, they’re going to stay in jail pending trial.”
Instead, he said, judges are using the amendment as a way to reduce the number of people being held.
And, he said, a faster release may be alarming to people who see an arrest and then days later see the person around town, even if the suspect is eventually jailed when the case is resolved.
“It’s beginning to seem to the average member of the public like there’s no consequence to being arrested for committing a violent crime,” Outler said.
Legislative Finance Committee data confirms that since the summer of 2017, more arrestees are getting out of jail sooner. The number of inmates released from the Metropolitan Detention Center within 72 hours increased by about 20 percent since June 2017, when Bernalillo County started using an evidence-based risk assessment to help judges determine which defendants were good candidates for release. Soon after, the Supreme Court’s rules went into effect.
On the other hand, Matthew Coyte, former president of New Mexico Criminal Defense Lawyers Association, said prosecutors are filing frivolous detention motions and defendants normally spend several days in custody awaiting those hearings. He said district attorneys have a political incentive to file numerous motions, leading to unnecessary detention, “which actually increases our crime rates.”
A faster release might mean a defendant’s life isn’t derailed by an arrest. Coyte cited research commissioned by the Laura and John Arnold Foundation that found a low-risk defendant’s likelihood of new criminal arrest before trial increases by 39 percent when they are held for two or three days, as opposed to those held for a day or less. Those held for four to seven days are 50 percent more likely to be arrested again.
“Every day that somebody is in custody … disrupts their life to a point that it is harder for them to get back to normal, and therefore it is more likely that they will do things which will get them back in jail later,” Baur said.
The LFC reported that “the likelihood of incurring a new felony arrest consistently increases for each extra day spent in jail until it levels off after about five days.” New arrest likelihood doubles for inmates staying longer than five or more days as compared to those in custody for less than a day. Alternatively, according to the LJAF, a high-risk defendant is equally likely to reoffend no matter how much time he or she spends detained pretrial.
According to data released by the University of New Mexico Institute for Social Research, the amendment has succeeded in reducing the number of MDC inmates in custody on a bond. That number fell from 402 in January 2017, shortly after the amendment went into effect, to 66 in May 2018.
“The amendment has been helpful in removing the toxic influence of the bail bonding industry,” Coyte said. “Now, poor people are much less likely to languish in jail waiting for their trial dates.”