I guess it’s fair to say that I know how to kick a hornet’s nest, and with the rightful outrage about the recent Fabian Gonzalez release (in the Victoria Martens case), it’s time to visit this subject again.
You can read the responses from Arthur W. Pepin, ostensibly written on behalf of the Supreme Court as the administrative director, Margaret Strickland and Stacey Ward, in the not-so-distant past to discover what happens when the policy decisions of the judiciary are questioned for invading the province of the Legislature to legislate the liberal pet agenda item of bail reform through rule-making authority.
This paper even went so far as to call me a shill because, on policy and constitutional levels, I support the use of money bail in our criminal justice system.
Let’s take a moment and back things up a little bit. First, I never made it personal; my criticism of the late Justice (Charles) Daniels was not vicious any more than it was personal. Justice Daniels decided to take on a political role by lobbying on the policy of bail reform while he was a sitting justice. He engaged in the political process. My opinion is that, in doing so, his actions were inappropriate. Moreover, he entered the political arena, and drew the rest of the court with him, when the court legislated the policy change he wanted, but could not obtain through the legislative process. Make no bones about it, the rules adopted by the New Mexico Supreme Court do not reflect what was adopted by the voters in the constitutional amendment, which I personally and wholeheartedly support.
Instead of staying in their judicial lane – notably my criticism of the late Justice Daniels and the court has nothing to do with any of the adjudicatory decisions – they exceeded the authority granted to them by the Legislature in statute. Remember, the powers of the New Mexico Supreme Court are limited by the separation of powers in the New Mexico Constitution and by NMSA section 38-1-1, which prohibits them from making any rule to “abridge, enlarge or modify the substantive rights of any litigant” aka modify the way defendants can post bail. And keeping the courts of out of policy legislation is for good reason. Number one, it shields them from “vicious” criticism from citizens like me, but more importantly it protects the balance of power in our system of government.
While it may be a harsh truth that friends of the justices or the Journal may not like to hear – I know for a fact that justices did not like hearing it, hence their pursuit of sanctions against me – the rules passed by the New Mexico Supreme Court establish culpability for tragedies, such as the loss of (slain UNM babseball player) Jackson Weller and now the release of Fabian Gonzalez. Why? Because the rules adopted by the New Mexico Supreme Court, different from the Constitutional Amendment, can result in many defendants being released without requiring any real skin in the game that the person will return for trial and not commit any other crimes in the meantime.
This is inarguably catch-and-release, it is driving rising crime and it contributed to the death of at least one promising youth. The public shouldn’t become confused; we addressed the issue of keeping poor people in jail because they couldn’t afford bail, those protections are in our Constitution now. What we need to fix is the policy legislated by our judges in the proper forum, the Legislature, or we need to make sure that our high court comprises individuals who understand that a black robe does not give them the power to legislate.
A. Blair Dunn has represented the Bail Bond Association of N.M.