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A new study makes the case that legislative proposals intended to make it easier to keep certain criminal defendants in jail while awaiting trial would have done little to reduce crime.
The study found that of thousands of additional defendants who would have been held in jail pretrial under a proposal considered by the Legislature this year, only about 4% were charged with a new violent felony during pretrial release.
“Most of the serious crime out there is not being committed by people under pretrial supervision,” said Cristopher Moore, a professor for the Santa Fe Institute and an author of the study.
The study analyzed 15,134 felony defendants in Bernalillo County who were released pretrial from July 2017 to June 2021.
The study estimated how many of those defendants would have remained in jail while awaiting trial under several proposals considered by the Legislature in recent years.
The study also analyzed the effects of House Bill 5 – a pretrial detention proposal supported by Gov. Michelle Lujan Grisham, 2nd Judicial District Attorney Raúl Torrez and Albuquerque Mayor Tim Keller that failed in the regular session this year.
The study estimated that under HB 5, an additional 2,403 defendants would have remained in jail while awaiting trial. Of those, 4% were charged with a new felony crime while awaiting trial.
“None of these proposals are zeroing in on that small fraction of defendants who really pose a danger to the public,” Moore said. The proposals also would significantly expand jail populations, he said.
“They all cast pretty wide nets,” Moore said.
The study was performed by the Santa Fe Institute and the University of New Mexico Institute for Social Research, Center for Applied Research and Analysis.
Torrez and others have proposed a variety of measures since 2019 intended to make it easier for judges to hold certain criminal defendants in jail while awaiting trial.
Adolfo Mendez, chief of policy and planning for Torrez, called the report a “flawed study designed to justify a broken catch and release system” and criticized the courts for weighing into policy making.
“The report released today mischaracterizes the common sense proposals presented at the Legislature which would have provided the type of guidance judges in other states receive when making release and detention decisions,” Mendez said.
The study also drew fire Tuesday from a spokeswoman for Lujan Grisham, who reaffirmed the governor’s support for keeping violent defendants in jail pending trial.
“This very study references nearly 100 defendants who were charged with new violent felonies while on pre-trial release – that’s nearly 100 victims and families who were subjected to violence due to an offender’s violence not being given appropriate consideration,” Nora Meyers Sackett said Tuesday in a written response.
The legislative proposals considered in the study generally would create a “rebuttable presumption” that defendants should remain in jail based on the defendant’s criminal history, the severity of the new crime and other factors.
House Bill 27, a proposal the Legislature considered earlier this year, would have created a presumption that defendants should be held pretrial who are charged with a serious violent offense, such as crimes involving a firearm, or have past failures to appear in felony cases.
The study estimates that of the 15,134 criminal defendants released pretrial, HB 27 would have detained at least 7,347 defendants in jail while awaiting trial.
Of those additional defendants detained, 288 – or 4% – were charged with a new violent felony while awaiting trial.
The researchers found that recent legislative proposals would jail at least 20 additional defendants to prevent one person from being arrested for a violent felony charge pretrial.
When someone is detained in jail pretrial “there are a lot of consequences to them, to their families,” Moore said.
“They can lose jobs, housing, custody of their kids and so on,” he said. “We don’t hear about those costs as much as we hear about the terrible cases where someone is released and does do something awful.”
Under current law, people charged with a felony can be held in jail pending trial only if prosecutors can persuade a judge that no conditions of release would protect the public, or that a defendant is unlikely to appear in court.
The study considered a variety of factors considered presumptions for pretrial detention, including current charges, past convictions, failures to appear at court hearings and previous violations of conditions of release.
“We find that for all these criteria, at most 8% of the defendants they identify are charged pretrial with a new violent crime (felony or misdemeanor) and at most 5% are charged with a new violent felony,” the study said.
Editor’s note: An earlier version of this articled reported that the study did not consider the effects of House Bill 5. The study included an analysis of HB 5.