Pretrial release defense cherry picks data - Albuquerque Journal

Pretrial release defense cherry picks data

The New Mexico Supreme Court building in Santa Fe. (Eddie Moore/Journal)

Here’s an easy way to cut in half the number of accused felons out of jail on pretrial release: Just halve the length of time it takes to bring a case to trial.

It could be done. On June 30, 1945, down in Hobbs, John Couch blasted a group of teenagers with a shotgun, killing one and blinding another. His trial wrapped up before the end of August. Two months.

Current rules of criminal procedure in Bernalillo County allow for the passage of seven months between arraignment and trial in simple cases, and fifteen months in complex ones.

The slowness of the system was worsened by the pandemic, which created a backlog of jury trials. Consequently, on any given day, there are simply a lot of accused criminals free on pretrial release.

Even if only a small percentage commit new acts of violence, that adds up to a lot of human suffering, all of it preventable.

To be fair to the district judges, it’s not possible to predict with accuracy the future behavior of human beings, especially those with impulse control issues. But that’s what the current system requires them to do.

The old money-based bail system was effectively abolished by the state Supreme Court in 2014. Then-Chief Justice Charles Daniels, author of the decisive opinion, spent much of 2016 campaigning around the state in favor of a constitutional amendment to create an entirely new system of pretrial release.

And I use the word “campaigning” advisedly. The Ruidoso News on July 19, 2016, ran an interview under the headline: “NM Chief Justice Daniels backs bail reform amendment.” noted that Daniels was “departing from the tradition of judicial impartiality” as he stumped for the measure. The PBS station in Portales gave him a full half-hour.

Following the success of the chief justice’s campaign, his court issued micromanaging rules of procedure that go well beyond anything the voters approved, requiring judges to impose the “least restrictive” conditions that might “reasonably” protect the community.

In short, the current system of pretrial release is the Supreme Court’s baby.

In a recent front-page story, the Journal reported that “judicial leaders fired back at critics of pretrial release.”

Before getting into the details, it’s worth pausing to remark how unusual it is for the Supreme Court to direct a state agency it controls, the Administrative Office of the Courts, to intervene in a political debate.

And the debate is emphatically political, belonging to the here-and-now of practical politics and not to some ethereal realm of the purely judicial, because no function of government is more basic than protecting its citizens from harm.

The court touted a study analyzing 10,289 felony cases in which defendants were released pending trial.

“Only 13 of the cases analyzed — fewer than 1% — involved arrests for first-degree felonies while defendants awaited trial,” the Journal reported.

To put that figure in perspective, you need to know that most murders in New Mexico are classified as second-degree felonies. First-degree felonies are crimes the Legislature considers worse than murder.

They include the most atrocious forms of kidnapping, human trafficking, child abuse and rape. Also, repeat convictions for armed robbery and drug trafficking.

We can hope that all 13 defendants arrested for first-degree felonies were repeat small-time drug dealers. Otherwise, 13 easily prevented first-degree felonies is a horrendously high number.

The court’s broader analysis relied on arrest records. The study found that just under 5% of defendants were arrested for new violent offenses while out on pretrial release. Unfortunately, that doesn’t mean only those 5% committed new acts of criminal violence.

The federal Bureau of Justice Statistics conducts an annual survey of crime victims. Its figures show that “in 2019, only 40.9% of violent crimes and 32.5% of household property crimes were reported to authorities,” as summarized by the Pew Research Center.

In that same year, “police nationwide cleared 45.5% of violent crimes that were reported to them and 17.2% of the property crimes that came to their attention.”

Based on these figures, fewer than one in five violent crimes are “cleared” by police. But the percentage of arrests is even lower than that, because police clear cases for reasons other than arrest.

One reason for clearance is lack of cooperation by victims and witnesses, often a result of intimidation. Witness tampering is itself a crime, but one rarely reported to police, for self-explanatory reasons.

So when the Supreme Court says about 5% of released defendants are arrested for new violent crimes, we can safely conclude the percentage who commit violent crimes is larger, and probably much larger.

The records cited by our Supreme Court to “prove” dangerous offenders aren’t being released into the community show nothing of the kind.

Joel Jacobsen is an author who in 2015 retired from a 29-year legal career. If there are topics you would like to see covered in future columns, please write him at<br”>href=”http://legal.column.tip”><br>

Albuquerque Journal and its reporters are committed to telling the stories of our community.

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