Copyright © 2019 Albuquerque Journal
A recent review calls into question the likely effectiveness and outcomes of a proposal by 2nd Judicial District Attorney Raúl Torrez to change the way pretrial detention is handled in New Mexico.
In May, Torrez unveiled the framework for a constitutional amendment intended to make it easier to detain defendants charged with specific crimes and expand the criteria for holding defendants until trial.
The University of New Mexico Institute for Social Research undertook the review at the request of former New Mexico Supreme Court Justice Charles Daniels. Daniels pushed for the current pretrial detention system, which voters approved overwhelmingly in 2016.
A departure from the current system, Torrez's proposal would create a rebuttable presumption of detention for specific crimes and allow detainment for dangerousness, flight risk or obstruction of the criminal justice process.
Torrez has said the changes will simplify and strengthen the detention process, restore it to its original public safety purpose and rebuild confidence in the justice system.
But Paul Guerin, director of UNM's Center for Applied Research and Analysis, found no evidence that Torrez's proposal would improve public safety. He also said that preventive detention motions in recent years have not “substantively” improved public safety, based on a review of cases in which a defendant was released despite the DA's requesting detention and those cases in which no detention motion was filed.
Guerin's memo recommends that the rebuttable presumption proposal be scaled back.
“If rebuttable presumption use is limited to cases in which defendants are charged with offenses punishable by life imprisonment, and other pretrial detention decisions are left to judges' discretion and informed by risk assessment tools like the PSA, they can ensure reputation protection (for the judicial system) and align with national standards without undermining public safety,” the memo says.
Richard Pugh, president of the New Mexico Criminal Defense Lawyers Association, said that when a person's liberty is at stake, every accusation and every individual needs to be carefully considered.
“This study shows there is no place in the criminal justice system for broad generalizations and a one-size-fits-all approach,” he said. “The study further shows that the district attorney's proposal to expand pretrial detention is not grounded in statistical support.”
But Michael Patrick, a spokesman for the DA's Office, defended Torrez's proposed constitutional amendment, saying the community is fed up with the “catch-and-release system that routinely puts armed and dangerous criminals back on our streets.”
“Rather than trying to prop up an obviously broken system, leaders in Santa Fe should listen to the community and follow the lead of other progressive jurisdictions – like California – that have enacted responsible bail reform measures that also include presumptions for armed and violent offenders,” he later added.
Guerin's findings came as no surprise to Assistant Public Defender Jonathan Ibarra.
“I know the judges take very seriously the detention hearings – different judges have different ideas – but they all take that responsibility very seriously,” he said. “I think the issue is that the district attorney overfiles and underperforms.”
Twenty-nine states have rebuttable presumptions of detention for defendants charged with specific crimes. New Mexico is not one of them.
Torrez's proposal would change that, allowing presumptions for a wide range of charges, including violent felonies, firearm possession, intimidation of witnesses and felonies committed while on probation or parole.
Guerin's memo cites research showing that a defendant's current charge alone doesn't predict involvement in future dangerous crimes. The memo also notes that some of the offenses or statutes the DA lists in his pretrial detention proposal “are arguably questionable indicators of dangerousness.”
Many of the factors are already taken into consideration by the Arnold Venture's Public Safety Assessment, a tool judges use when deciding to detain someone, according to the review.
Guerin's memo says that rebuttable presumptions of detention could jeopardize public safety in at least two ways. Limited detention resources are used on those who could be released or supervised while more dangerous defendants are released. On the flip side, the memo says, studies show unnecessary detention can lead to higher recidivism rates if defendants lose their jobs or their homes, or suffer other disruptions because of their detentions.
As part of the review, UNM looked at more than 7,000 cases filed from July 2017 to August 2018 – 1,500 of which had preventive detention motions filed. Of those motions, 46% were granted and 54% were denied.
The review found no substantial differences in failure to appear and in new criminal activity rates between defendants for whom the DA did not request detention and those who were released despite the DA's requesting detention. Only 2.9% more of those defendants in denied motions failed to appear at court, and only 2% more picked up new charges.
In all, the memo said, 17% of those denied cases picked up a new charge, but Patrick said a DA's Office review of cases filed from January 2017 to June 2019 found that percentage was closer to 30%.
“There are numerous examples of dangerous criminals we have tried to detain, only to see them be released to commit a new violent crime,” Patrick said. “Enough is enough.”