Editorial: Pretrial release decisions must hinge on good police work, solid prosecutorial arguments and judicial discretion - Albuquerque Journal

Editorial: Pretrial release decisions must hinge on good police work, solid prosecutorial arguments and judicial discretion

During election season in New Mexico, promises to crack down on crime are ubiquitous — on both sides of the political divide. Find us a candidate who doesn’t think the criminal justice system needs fixing.

Almost as soon as voters passed a constitutional amendment reforming the bail system in November 2016 (which replaced the money-for-freedom system with judicial discretion as to who poses a flight or public safety risk), there were calls to reexamine the changes and/or make it easier to keep certain defendants behind bars pending trial.

High-profile cases fueled outrage and outcry when they involved repeat offenders accused of violent crimes being let out before trial only to re-offend again — even though data shows such cases are the exception, not the rule.

This past legislative session saw a “rebuttable presumption” bill that would have shifted the burden to defendants accused of a handful of violent crimes to show they could be released safely pending trial. Though it was supported by Gov. Michelle Lujan Grisham, Albuquerque Mayor Tim Keller and Second Judicial District Attorney Raúl Torrez, it failed to make it through the Democratic-controlled Roundhouse.

And, so, here we are, weeks from the June primary and, as is often the case during campaign season, complex problems get boiled down to simple solutions that are summed up with a memorable catch phrase, such as “I will end catch-and-release.”

Sounds good. But few candidates ever own up to how such a lock-’em-all-up policy shift would suddenly overwhelm the courts and detention facilities without actually reducing crime and that such a blanket policy would turn innocent until proven guilty on its head.

What really needs to happen is a true implementation of the bail reform New Mexico voters were promised in 2016. The solution is learning from errors in judgment, not throwing the baby out with the bath water.

And that includes judges exercising their considerable discretion to detain dangerous defendants, based on solid arguments made by prosecutors, which are based on solid police work in violent crimes. While defense experts and data analysts maintain that changing pretrial detention won’t lower crime, the prevailing political belief is that detaining more violent crime suspects prior to trial can make a dent in soaring crime rates.

A recent N.M. Supreme Court ruling highlights one case where a judge made the wrong call when he ordered an 18-year-old who had been charged in two separate homicides to be released on a GPS monitor while he awaited trial. Charges against Adrian Avila had been dropped in the first case and were pending in the second. The March 22 decision to release Avila pending trial drew fire from Albuquerque Police Chief Harold Medina, who also criticized the so-called “Arnold tool” that judges use in predetention hearings. Torrez promptly appealed Avila’s release and the high court’s ruling means Avila must await trial in jail.

The ruling should signal to the state’s district court judges that, even though “rebuttable presumption” failed to pass, they should give serious weight to the severity of all current and previous charges when deciding whether to allow a defendant to be released.

Solid work, discretion key to success

Let’s remember how we got here. Before the 2016 reform, judges routinely set bonds as a means of ensuring court appearances. When that system went away, judges had to begin making a more explicit decision about whether defendants should be detained or released based on their likelihood of appearing in court or getting re-arrested, and the danger they posed to society.

And something called the “Public Safety Assessment,” or PSA, was brought into use in Bernalillo County courtrooms in mid-2017 as a way to help judges in setting conditions of release. It is also used in San Juan County, as well as in Arizona, Kentucky, and New Jersey, and Charlotte, N.C., and Chicago.

The PSA, also known as the Arnold tool, was developed by the Arnold Foundation in partnership with leading criminal justice researchers using approximately 750,000 cases from 300 jurisdictions across the United States. Court officials have said in all cases it recommends a suspect be released pending trial, and then goes on to suggest the conditions that should be placed on that release.

Arnold Foundation studies maintain keeping lower-risk criminals in jail for long periods greatly increases the person’s chance of committing additional crimes. We agree and add many nonviolent offenders should be out contributing to society while their cases are resolved rather than incarcerated, and putting their jobs, homes and families at risk.

But, while an analysis of more than 10,000 felony cases in Bernalillo County found that 95% of felony defendants were not arrested for a violent crime while on pretrial release, it’s that 5% that can drive the narrative — especially when cases in that 5% involve defendants with multiple charges and cases involving fatal shootings. Yes, you can argue it is better for 100 guilty individuals to go free than one innocent one be punished, but when one of those guilty individuals guns down a University of New Mexico baseball player on Central, the data argument simply doesn’t resonate.

So, it is important that advocates of pretrial release have stepped up to clarify that such PSAs be used after a judge has determined a defendant should be released. Matt Alsdorf and Alison Shames, co-directors of Advancing Pretrial Policy and Research, spoke to the Journal’s Editorial Board last week defending the PSA, but also clarifying that it should not be used when deciding whether or not to release. It should be used after a judge has determined to release a defendant and only “for release conditions decisions,” Shames said.

The Supreme Court just gave us one example of a defendant who should have been detained rather than released. Going forward, law enforcement needs to hand prosecutors solid investigations, prosecutors must do a good job making the argument for detention, and judges need to set the PSA aside until they decide on detention or release.

That’s much harder than relying on a metric — or bail — as a crutch. But it engenders accountability in our legal system and is the right way to do it.

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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