When voters overwhelmingly approved a bail reform constitutional amendment in 2016 (617,000 to 90,000), it was to ensure the courts base pretrial-release decisions on the risk an individual poses to public safety.
They voted to keep the right people – dangerous people, not nonviolent or poor people – in jail pending trial. The amendment’s language proposed to give “courts new authority to deny release on bail pending trial for dangerous defendants in felony cases while retaining the right to pretrial release for non-dangerous defendants who do not pose a flight risk.”
But it just hasn’t worked out that way. In the ensuing four years, some judges have released dangerous suspects, including those charged with violent felonies, based not on their complete criminal history or the actions they were accused of but on a flawed risk-evaluation tool.
And hundreds of those defendants have committed new crimes after being released, many with a gun or other deadly weapon – including the defendant in the case of the UNM baseball player shot and killed in Nob Hill last year.
So additional rules announced by the state Supreme Court last week should make things much clearer when it comes to pretrial detentions and hopefully end what has become a catch-and-release system in New Mexico. The Supreme Court has weighed in before, attempting to clarify some of these issues. But last week it put those clarifications into the rules.
Starting Nov. 23, state District judges will be able to schedule a pretrial detention hearing for defendants charged with certain crimes – a felony involving the use of a firearm or the use of a deadly weapon resulting in great bodily harm, if the crimes carry a sentence of life in prison without the possibility of parole and if a public safety assessment tool flags potential new violent criminal activity by the defendant – even before a prosecutor files a motion.
Another rule change allows a broad range of evidence – including statements by a prosecutor about what a witness would testify to – to be used at the hearing, rather than requiring the witness to appear. The third rule change gives Metropolitan and magistrate court judges an extra 24 hours to determine a defendant’s conditions of release in certain cases. Fifth Judicial District attorney Dianna Luce, who covers Eddy, Chaves and Lea counties and is also the president of the New Mexico District Attorney Association, says the change will help rural prosecutors gather information on a defendant before they’re possibly released.
Artie Pepin, director of the Administrative Office of the Courts, says the changes “strengthen the reforms and further protect our communities by helping to identify potentially dangerous defendants who may warrant pretrial detention.”
And while the Law Offices of the Public Defender argue the rule change in practice turns judges from unbiased arbiters of justice to prosecutors determining if someone is a danger, the bottom line is the buck on releases has always stopped at judges. Voters look to them to keep potentially dangerous defendants behind bars, not nonviolent or poor ones.
It’s good to see the Supreme Court address bail reform once again, because in the past four years New Mexico has found that striking the right balance is a difficult process, but it is absolutely one worth pursuing. If implemented correctly, the new rules have the potential to reduce serious crimes in New Mexico and help our judges better keep communities safe.
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.