ALBUQUERQUE, N.M. — A committee appointed by the New Mexico Supreme Court is recommending that the state Constitution be amended to allow judges to keep violent criminal defendants in jail without bail if they are a flight risk or pose a significant danger to an individual or the community.
The so-called preventive detention provision would be just one part of an overhaul of the pretrial release system that also would allow less dangerous offenders out of jail without having to pay bail bond companies to post their bail.
Bail bond industry representatives immediately assailed the recommendation, pledging to fight the proposal.
The issue has come to the forefront recently after a state Supreme Court decision reinforcing the state constitutional right to reasonable bail in all but capital murder cases, along with a number of high-profile crimes committed by defendants who have bonded out, been released on recognizance or had been released from jail under supervision.
Police and advocates for domestic violence victims also have been critical of what they call the “catch-and-release” system currently in place, in which defendants post bail and are back on the streets shortly after their arrest.
The committee on a vote of 7-2 approved a letter that recommends the Supreme Court pursue a constitutional amendment that would permit New Mexico judges to detain defendants pending trial in cases “in which there is no type of pretrial release and/or conditions of pretrial release that will reasonably assure the defendant’s appearance in court or the safety of any other person and the community.”
The committee decided not to draft a specific amendment, leaving that job to the Supreme Court, Administrative Office of the Court and the Legislature. A constitutional amendment would require approval first by the Legislature and then by the voters.
Leo Romero, a former University of New Mexico Law School dean who is chairman of the committee, told the Journal that “there is a long way to go” for an amendment to come before voters.
Two bail bondsmen on the committee voted against approval.
Gerald Madrid, a prominent Albuquerque bail bondsman and committee member, said that the state Supreme Court has put the entire bail bond industry “under assault” and that he doesn’t think a constitutional amendment would survive the legislative process.
“I really don’t think it has a chance,” Madrid said. “The defense attorneys will be opposed to it. Many legislators will oppose it because it does away with the right to bail.”
The recommendation for a constitutional amendment is the first in what is expected to be a series of recommendations from the committee to reduce the use of commercial bail bonds by people charged with crimes to get out of jail.
The committee also approved a letter asking the Supreme Court to seek legislative approval to create a central criminal records repository that would give judges timely access to the criminal backgrounds of defendants appearing before them.
The committee has been holding public meetings for several months studying how the state’s judiciary can comply with a state Supreme Court ruling last year that found the common practice of setting bail bonds to keep defendants in jail pending trial was unconstitutional.
And the committee has been looking to actions taken in other states, such as New Jersey, that have overhauled rules on pretrial confinement and bail bonds.
The committee is reviewing other recommendations, some that would substantially reduce the role of bail bond companies, including the release of first-time defendants without bail who are charged with nonviolent misdemeanors (other than drunken driving arrests).
The court established the committee to look into overhauling the bail-based pretrial release system because it currently runs afoul of a ruling the court made last year. That ruling created confusion among judges throughout the state on how they should set bail bonds.
The Supreme Court made its ruling in a case in which a 19-year-old Walter Brown was charged with murder and was in pretrial custody for three years because he couldn’t pay the $250,000 cash-only bail.
The court ruled that the trial judge, now-retired District Judge Kenneth Martinez, denied any other type of release for Brown because of the nature of the charges.
The unanimous opinion, written by Justice Charles Daniels, brought into question widespread bail bond practices, including the use of bond schedules approved by local courts that are used to allow bail bond companies to post bail for defendants before they are arraigned before a judge.
The court found that Martinez ignored testimony that Brown was likely to comply with terms of release recommended to the judge. The charges against Brown were eventually dismissed, in part because it took too long to bring the case to trial.
The opinion said judges were setting bail based on the nature of the criminal charge, ignoring the state Constitution, previous court rulings and court rules requiring that judges tailor the least restrictive conditions of release to ensure community safety and the defendant’s appearance at trial.
The ruling said that criminal defendants under the state Constitution are entitled to a “reasonable” bail bond based on an individual assessment on the likelihood that the defendant would flee or present a threat to an individual or the community.
The bail bond industry from around the state has protested some committee proposals and rule changes that would allow more people arrested to be released on their own recognizance without bail.