ALBUQUERQUE, N.M. — Describing the state’s bail bond system as broken, Sen. Peter Wirth, D-Santa Fe, says he will sponsor a constitutional amendment proposed by the state Supreme Court that would allow judges to hold dangerous defendants or those who pose a flight risk in jail without bail pending trial.
The proposed amendment, which is being drafted, also will provide assurances that defendants who qualify for pretrial release will not be held in jail simply because they can’t afford to post bond.
Artie Pepin, director of the Administrative Office of the Courts, said during a news conference Thursday that the court’s five justices voted unanimously to support the amendment.
Wirth, a member of the Senate Judiciary Committee, said he would introduce the amendment as a joint resolution at the end of October before the Legislature’s Courts, Corrections and Justice Committee.
The joint resolution would have to pass both the House and Senate in next year’s 30-day session before it would go to voters in November.
Wirth said he doesn’t have cosponsors for the amendment but hopes to build support in the coming months.
The portion of the amendment dealing with pretrial detention without bail is expected to face opposition from criminal defense attorneys. The entire amendment is opposed by many in the bail bond industry, who see it as an assault on their business.
“Defendants should never be denied bail solely because they can’t pay,” Wirth said. “And judges should not have to grant bail when the evidence clearly demonstrates a defendant is a flight risk or a danger to society.”
The amendment would require a hearing for a judge to determine if a defendant is a flight risk or a danger to society.
“The current system allows a person with financial means to buy their release from jail, no matter how dangerous they might be,” Pepin said.
Last year, the Supreme Court found that judges had been setting high monetary bail bonds to keep defendants locked up and that the practice violated the state’s Constitution, which requires reasonable bail for virtually every defendant.
The exceptions under the constitution are narrow, Pepin said.
The ruling created confusion among judges around the state, and the Supreme Court appointed the Ad Hoc Pretrial Release Committee to address issues raised by the court’s ruling. The committee recommended a constitutional amendment earlier this month.
The committee chair, former University of New Mexico law school Dean Leo Romero, said the committee is working on a number of other recommendations involving the release without bail bonds of low-risk defendants.
The committee is also looking at the long-standing practice of jailhouse bail bond schedules authorized by courts around the state that link the amount of a bail bond to a criminal charge.
Romero said that practice is in conflict with Supreme Court decisions, which order judges to make individualized decisions for each defendant as to bail bonds or conditions of pretrial release.