It really shouldn’t be surprising that the Arnold Tool, used by some N.M. courts to determine the likelihood that a defendant will show up to court and/or commit a new crime, recommended Solomon Pena be released. And on one of the lowest levels of supervision, to boot.
Because looking only at the factors the Arnold Tool weighs — among them, seriousness of charges, age of suspect, prior violent offenses, recent “failure to appear in court” — it would make sense Pena would score a “3” out of a possible “6” on seriousness of current charges (third- and fourth-degree felonies) and whether he will appear in court when he’s supposed to (no failures to appear within the past two years).
Prosecutors allege Pena, a Republican who posted that a “rigged” election led to his landslide loss last year to longtime House incumbent Miguel Garcia, D-Albuquerque, masterminded a string of drive-by shootings over the course of a month that targeted the homes of Bernalillo County Commissioners Adriann Barboa and Debbie O’Malley, state Rep. Javier Martínez and state Sen. Linda Lopez. Not really things to be released for on the honor system. Yet, the tool recommended Pena be released “ROR PMLA 2,” released on his own recognizance with minimal pre-trial monitoring-level restrictions.
The tool and public safety
Developed by Arnold Ventures, whose “core mission is to invest in evidence-based solutions that maximize opportunity and minimize injustice,” the tool is used to create individual Public Safety Assessments for defendants to determine if they present a risk if released before trial.
Pena’s PSA says he is charged with four counts of shooting at or from a motor vehicle; four counts of shooting at a dwelling or occupied building; four counts of conspiracy to shoot at a dwelling or occupied building; and one count of receipt, transportation or possession of a firearm or destructive device by certain persons; one of attempt to commit aggravated assault (deadly weapon); and one of criminal solicitation to commit shooting at a dwelling or occupied building.
Even though one of those shootings caused bullets to fly through a child’s bedroom while she slept, Pena is facing mostly fourth-degree felony charges, the lowest felony level. That’s likely why he scored a “3” on severity of charges.
And he scored a “3” on risk factors because his previous conviction was not a violent offense, he is older than 23 and does not have any failure to appear in court instances in the past two years.
And though Pena had also served his time for multiple felonies of commercial burglary, larceny and contributing to the delinquency of a minor in 2008, he got out of prison, got his bachelor’s degree, bought a home and got a job, according to his lawyer. All admirable accomplishments for a productive member of society.
Artie Pepin, director of the Administrative Office of the Courts, says the tool gives “evidence-based information” to help decide the level of appropriate pretrial services and supervision. Some supporters of the tool acknowledge it will almost always recommend release and it’s only about what conditions should be levied if a judge determines a release is called for.
Prosecutors wrote in a pretrial detention motion that Pena’s “actions show what lengths he is willing to go when he is dissatisfied with reality. He arranged multiple shootings of multiple homes, and he personally participated in at least one of the shootings. There is no reason to believe that someone so unwilling to accept reality will give any credence to court-ordered conditions of release.”
Judge rules against release
Fortunately, Second Judicial District Judge David Murphy ruled in favor of public safety and determined Pena will stay behind bars until trial. He said “based on the nature and circumstances of the charges, as well as defendant’s own history as a convicted felon, and the allegations of possession and use of an assault rifle, as well as the allegation that he has provided firearms to his conspirators,” no conditions of release could be fashioned that would ensure public safety.
Second Judicial District Judge Joseph Montano made a similar decision in August in the high-profile case of Muhammad Atif Syed, charged with killing two Muslim men, even though the Arnold Tool said he, too, should be released as he posed a low risk based on his age, criminal history and other factors.
Lawmakers may weigh in
State Sen. Joseph Cervantes, D-Las Cruces and chair of the Senate Judiciary Committee, is correct to shine a much-needed spotlight on pretrial release and the Arnold Tool. In New Mexico courts, it is used in Bernalillo and San Juan counties.
Cervantes, an attorney, says the tool has “many faults, but (is) used to justify release of criminals.” And while the system erred on the side of public safety in the Pena case, “we’ll be looking for that same level of protection for all New Mexicans, not just elected officials.”
And if the tool is nothing more than a recommendation on levels of monitoring if released, why is it in play before a judge rules if a defendant should be held?
New Mexicans voted overwhelmingly in 2016 to reform the cash-for-bail system that kept low-level offenders without means behind bars to await trial while wealthy and/or connected violent criminals enjoyed a revolving door. The idea was to keep dangerous defendants behind bars and let everyone else try to get their lives on track.
And, given the latest on the Arnold Tool, Cervantes is right: New Mexicans are still waiting for a fair and uniform system that does just that.
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.