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Editorial: Bail reform needs fine tuning to keep violent offenders locked up

“New Mexico residents must be free to have every expectation of safety in their homes and communities. It’s our duty as a state to take every action we possibly can to realize that freedom.”

– Gov. Michelle Lujan Grisham after dispatching 50 State Police officers to Albuquerque

Kudos to the governor and Albuquerque Mayor Tim Keller. Now, in addition to their coordinated police crackdown on Metro-area crime, they can make a long-term impact by getting out front and aggressively supporting a proposal by Second Judicial District Attorney Raúl Torrez that will end the practice of pretrial “catch and release” for many dangerous defendants. Because all the cops in the world won’t solve our crime problem if defendants involved in multiple shootings, who are willing to fire off high-powered rifles like AR-15s in the middle of the city, are released pending trial on serious felony charges.

Torrez has the support of victim advocates, the Greater Albuquerque Chamber of Commerce and the state District Attorneys Association for a statutory or constitutional change that would create a rebuttable presumption in favor of pretrial detention for defendants accused of certain crimes — with a focus on crimes committed with deadly weapons. While much of the constitutional amendment reforming New Mexico’s bail system — which was overwhelmingly approved by voters in 2016 — was modeled after the federal system, it lacked that important provision.

Torrez says the result is that since January 2017, judges have denied more than half of prosecutors’ requests for pretrial detention in Bernalillo County. Of the 1,273 denials, his office says 367 defendants have been charged with new offenses — 183 of them with a new offense using a gun or deadly weapons.

That’s not what state legislators or voters signed up for.

The murder case against Darian Bashir for allegedly gunning down UNM baseball player Jackson Weller in Nob Hill after the bars closed earlier this month has struck a nerve. This is the third time Bashir has been accused of using a gun in the commission of a crime. The first time, in 2017, he allegedly shot a man in the stomach; the case was dropped six weeks before it was scheduled to go to trial. The second time he was charged with aggravated assault with a deadly weapon, shooting at or from a motor vehicle and tampering with evidence — officers responding to gunfire in Southeast Albuquerque said they found Bashir and two other men in a sedan with rifles and handguns. The trio said they had been in a gunbattle and fired at another vehicle over a “gang beef.” Officers never found the other vehicle.

Judge Pro Tem Richard Brown found problems with the DA’s presentation and concluded Bashir had a minimal criminal history (even though this was his second time around, and with a firearm charge). And so, he was on supervised release when Weller was killed.

Sadly, the case of Darian Bashir isn’t an anomaly when it comes to violent defendants being released into the community. Consider Exhibit “B”:

Brown also denied prosecutors’ request for pretrial detention of Anthony Juarez in December. In that case, officers responded to a home in Northwest Albuquerque after a call about an armed, aggressive man. According to a criminal complaint, Juarez retrieved a semi-automatic AR-15 rifle from his truck and opened fire, popping off 26 rounds. Officers returned fire and hit Juarez in the shoulder.

Defense lawyers, of course, argued Juarez had no criminal history and the Arnold tool — used by the court to assess whether a defendant should be released — gave him the lowest possible threat ranking.

So as interpreted by judges in this district, guys who fire a weapon in a populated area, or 26 rounds at police, are not a threat and get supervised release. The chances of that happening in the federal system would be roughly zero.

Make no mistake. The constitutional amendment was a major improvement in the criminal justice system. As of Feb. 28, there were 259 defendants in the Metropolitan Detention Center on no-bond holds. Prior to the amendment, many of them would have posted bond and been back in the crime business pending trial.

And hundreds of defendants accused of petty crime who are a threat to no one are no longer languishing in jail, losing their jobs, their homes, their families. Shills for the bail bond industry would have you believe the amendment is responsible for a surge in crime, but in fact under the old “money for freedom” system, defendants in serious cases would be walking around with no restrictions if they could make bond.

Judges have the discretion to keep defendants like Bashir and Juarez in jail pending trial. The Supreme Court has clearly and explicitly said a judge can consider not only the current case but past conduct “charged or uncharged” in determining dangerousness.

Despite that authority, judges too often refuse to impose pretrial detention in serious cases in the crime-ridden metro area.

And that leaves little choice. If we want to keep the small number of dangerous defendants who are accused of committing the majority of serious crimes — especially with firearms — off the streets we need a statutory or constitutional change giving judges clear direction via a rebuttable presumption for detention.

Don’t be fooled by rhetoric that this proposal will keep drug-addicted people who need treatment in jail. That’s a canard. This targets the most dangerous offenders who present a threat to the law-abiding public — the guy who carjacks your vehicle at gunpoint or fires from a vehicle cruising Central Avenue. And keep in mind the DA is only charging about 6,000 of the 10,000 felony referrals the office gets from law enforcement now.

New Mexico has enacted background checks for gun sales and, with Albuquerque, is moving aggressively to put more cops in the community. But none of that will matter in the long run if we can’t keep gun-wielding defendants off the street. We owe at least that much to the law-abiding residents of Albuquerque, Bernalillo County and New Mexico.

And to Jackson Weller.

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.

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