The opinion also threatens the long-term viability of the commercial bail bond industry, as a succession of speakers told a public hearing last week at the University of New Mexico School of Law.
They said so-called “jailhouse bonds,” which allow a person charged with a crime to post bond on the spot and gain release before seeing a judge, are a public service that doesn’t cost taxpayers.
Bail bondsmen also said their services, provided 24/7, allow defendants to return to work and families, rather than wait in jail perhaps an entire weekend before they see a judge – an issue particularly in rural areas.
“Our No. 1 priority is to make sure someone is going to show up in court,” said Mario Vallejos of Quick Bonds in Valencia County, where his whole family works.
A former municipal judge told the committee that some jurisdictions don’t have access to services like ankle monitors or pretrial services officials who can research a person’s background and make suggestions on conditions of release.
“My concern is Pre-Trial Services is an extremely useful tool and a great service. (But) New Mexico, let’s be real, doesn’t have the services out there to support everybody,” Lee Ann McCracken said at the hearing.
Whether money bonds stay in place will be up to the high court.
In two of Colorado’s most populous counties, the District of Columbia and Kentucky, the courts have opted for a different approach that virtually eliminates money bonds.
State v. Walter Brown
The New Mexico high court, in State v. Walter Brown, ordered the release of a man held for three years without trial on a $250,000 cash or surety bond he could not meet despite “evidence (that) demonstrated that less restrictive conditions of pretrial release would be sufficient.”
The court also used its nearly 50-page ruling to address its perception that judges statewide were basing their bond decisions on the kind of crime, rather than looking at each defendant’s risk factors.
“We understand that this case may not be an isolated instance and that other judges may be imposing bonds based solely on the nature of the charged offense without regard to individual determinations of flight risk or continued danger to the community,” the opinion said.
In the wake of the opinion, the Administrative Office of the Courts issued an advisory to magistrate judges statewide telling them bail-bond schedules – lists tying a bond amount to a crime – could no longer be used. That was later rescinded.
Meanwhile, the Supreme Court set up an advisory committee of judges, prosecutors, defense attorneys and bondsmen, and asked it to come up with recommendations for a new pretrial release rules by August.
The first two meetings of the committee were devoted to a review of Brown, criminal procedures regarding bail and bond schedules, and a look at what court systems in other places are doing.
“There’s a lot of movement on this nationally,” said Leo Romero, the former dean of the UNM Law School and the committee chair.
The American Bar Association standards have long called for bail reform, and concerns intensify as jail and prison populations brim to overflowing.
Comments from the hearing, as well as written statements, will be used to draft recommendations that will be published.
After another comment period and revisions, the committee’s work will go to the Supreme Court for ultimate action.
Bond schedules vary
Meanwhile, bond schedules are in use in some, but not all, of New Mexico’s judicial districts. Doña Ana County no longer uses one based on its interpretation of the decision.
A June 2014 report on bond schedules by UNM’s Institute for Social Research looked at bond schedules – some 22 of them – used in New Mexico.
The report found the bond amounts for violent crimes, such as aggravated assault, to be higher in Bernalillo County, and “no bond hold” imposed in the majority of sexual offenses there. It said the disparities across the state suggested a need for a broader study and perhaps a standardized schedule.
Someone arrested for a traffic offense in Bernalillo County might be expected to pay $2,500, for instance, and $50,000 for vehicular homicide. But in Fort Sumner or Bayard or Truth or Consequences, the bond amount approved by the court might be different.
Romero noted, however, that the idea of a bond schedule “conflicts with the Brown opinion.”
Although a bail-bond schedule permits early release from jail, the bonding company keeps the 10 percent posted by defendants when the defendant might have been released on his own recognizance at an appearance before a judge, Romero said.
In the District of Columbia, even high-risk inmates appeared well over 80 percent of the time under new rules aimed at measuring risk, Romero said. Factors used may include whether the accused owns or rents a home, contributes to the residential payment, has a phone, has had alcohol or substance problems, the age at first arrest and prior sentences.
Lisa Simpson, a consultant to the county on jail overcrowding, said New Mexico faces challenges because of its primarily rural nature outside a few population centers, but that doesn’t mean reform isn’t possible.
“The thing with bond schedules is there truly is a safety issue,” she said, noting that bonding companies only guarantee a defendant’s appearance, not his or her behavior.
“They have no obligation to ensure you don’t reoffend. If you go out and reoffend … they don’t forfeit bond.”