Since statehood, New Mexico has relied heavily on bail bonds to release people from jail while awaiting trial – a system in which the amount of bail was set with the twin goals of protecting the public and making sure defendants showed up for court.
Judges concerned about danger to the community and the potential of public backlash frequently set sky-high bonds on people accused of heinous acts without looking at other factors. The bail bond industry, meanwhile, became ever more innovative with marketing strategies like “zero down with approved credit” for clients who needed to bond out of jail.
A recent state Supreme Court decision has turned that system on its head in a ruling that rocked the legal community – emphasizing that the state constitution requires reasonable bail for all defendants, with the exception of capital crimes.
The ensuing debate is likely to have a major impact on how defendants awaiting trial are handled.
The Supreme Court wants the state constitution amended to allow pretrial detention without bond for defendants who pose a threat to the community or are a flight risk to show up in court.
That would involve a decision by voters statewide on keeping some dangerous accused criminals in jail with no possibility of bail.
Meanwhile, judges continue to set high “cash-only” bonds in some cases that virtually ensure a defendant can’t make bail.
For example, Donovan Maez, 18, and Christopher Cruz, 21, are being held on separate bail bonds of $250,000 cash only for the shooting death of Manzano High School student Jaydon Chavez-Silver, 17, in June.
They are among the almost 200 people being held at the Metropolitan Detention Center on bonds of more than $100,000.
But defense lawyers armed with the recent Supreme Court case have pounced, aggressively arguing for lower bail under the ruling in State v. Walter Brown.
Their point: Under Brown, courts can no longer set bonds based strictly on the nature of the charges when setting bail bonds or considering conditions of pretrial release other than bail.
In essence, they argue for the lowest possible bond and least restrictive conditions of pretrial release.
The ruling is particularly troublesome in rural New Mexico, where judges are non-lawyer magistrates and jails use pre-approved bond schedules based on the charge.
Bail bond push back
Bail bondsmen like Gerald Madrid, of Gerald Madrid Bail Bonds, said they believe the Supreme Court is trying to put them out of business.
Intent notwithstanding, some court officials believe the changes they hope to implement could reduce the use of commercial bail bonds by 80 percent. Others say the role of bail bondsmen would be reduced, but that there would be a place for the bail bond industry.
A committee appointed by this year by the Supreme Court after its decision in the Brown case created confusion on what the court intended.
For instance, the Administrative Office of the Courts, an arm of the high court, issued a letter telling local courts that bail bond schedules used at jails around the state to release people on bail before arraignment were no longer allowed.
It begged the question of what was supposed to happen in small towns with limited judicial resources. The letter was withdrawn a day later.
Defense attorneys insist that the Brown case means that anyone charged with a crime is entitled to release from jail prior to trial under the least restrictive conditions and that the seriousness of the charge is no longer an issue to be considered.
Even before the Brown decision, the Bernalillo County District and Metropolitan courts working with the jail have been relatively successful in reducing the number of people held on nonviolent and minor charges at the Metropolitan Detention Center.
The problem is at the other end of the crime spectrum with drug dealers, rapists, burglars and armed robbers.
Police and some prosecutors have criticized the ruling as adding a revolving door on jails, where the arrested suspects walked out as fast as police could arrest them.
In the face of the confusion and criticism, the Supreme Court created an ad hoc committee to review the state’s pretrial release system and the use of bail bonds and make recommendations to the court on improving the system.
The committee’s open meetings attracted little attention until earlier this month when the group – with vocal opposition from bail bond industry members – recommended that the Legislature and voters amend the state constitution to allow some form of pretrial detention without bond for defendants who pose such a threat, based on criminal history and other factors, Or defendants who are unlikely to show up for trial. Think a well-financed drug cartel guy from Mexico.
The Supreme Court accepted the committee’s recommendation, and state Sen. Peter Wirth, D-Santa Fe, has agreed to carry the constitutional amendment to allow for pretrial detention of dangerous defendants and the right to pretrial release for those who can’t afford bail bonds for low risk defendants.
That’s not all
But the Supreme Court committee is considering other proposals that would change the way people are released from jail pending trial.
“We have a lot of other changes on the table that will allow judges to make the best analysis for making decisions on how someone should be released or what bonds to set prior to trial,” said Bernalillo County Metropolitan Court Judge Sandra Engel, a member of the committee.
Many of those changes mirror what the courts in Bernalillo County have been working on for more than 18 months under legislative and Supreme Court direction to end overcrowding at the Metropolitan Detention Center and address a backlogged criminal court docket.
“The options for pretrial release are expanding. People are still released on bail bonds,” 2nd Judicial District Chief Judge Nan Nash said. “But as we examine and explore these issues, we find that there are options other than bail bonds.”
Among the proposals under discussion by Supreme Court’s committee:
n Separate proposals that would allow people charged with nonviolent misdemeanors other than drunken driving and some people charged with nonviolent felonies to be released from jail on their own recognizance.
n A requirement that judges use a risk-assessment system, like the one judges in Bernalillo County will begin using next month, in determining what conditions to impose on a person so they can be released from jail. Those conditions range from very high bail to a promise to show up at the next scheduled hearing – in other words, no conditions.
n A statewide clearing house for criminal history information that judges and court staff would be able to access to help determine under what conditions a person could be released from jail.
• The use of unsecured bonds filed with a court instead of commercial bail bonds.
One committee member, Magistrate Judge Buddy Hall of Fort Sumner, said on several occasions during the committee hearings that members have to make sure the changes are practical for courts in rural areas that have few resources.
Some proposals will cost money and require new legislation, like the statewide clearinghouse for defendant criminal histories.
Changing court rules will be up to the Supreme Court, which appears poised to provide defendants and judges with alternatives to commercial bail bonds.
The constitutional amendment on no bail for high-risk defendants would have to go before voters in a general election, if it clears the Legislature.
Wirth said he would try to get it passed by the Legislature this session.
But committee member Rep. Antonio “Moe” Maestas, D-Albuquerque, said that process could take two to three legislative sessions and crafting the language of the amendment has to be done carefully.
He said it is important to build some momentum for the amendment.
“It is difficult to get something like this through during a short session,” Maestas said. “But the support of the Supreme Court would lend it a lot of credibility, so we’ll see if we can get it done.”
The alternative is to push out the move for an amendment until the 2018 session, he said.
Former University of New Mexico Law School Dean Leo Romero, the committee chair, said he expects a long road for a constitutional amendment.
Judge Nash doesn’t think a constitutional amendment allowing pretrial detention without bail will have much of an impact on the number of people locked up awaiting trial.
“That would potentially represent a very small percentage of people,” Nash said.
Last month, 22 people in the Bernalillo County Metropolitan Detention Center were held on bail bonds of $1 million or more. Most were charged with first-degree or felony murder.
District Attorney Kari Brandenburg said that pretrial detention is a critical issue and was cautious in her comments about a constitutional amendment that has not taken final form.
“Any proposed amendment should carefully balance the demands of the constitution, while also protecting the public,” she said.
Madrid and others have vowed to fight any amendment saying “bail is a basic right.”
“Before we think about making constitutional changes, we need to enforce the bail laws that already exist,” said Matt Coyte, president of the New Mexico Criminal Defense Attorneys Association.
Coyte said that the courts should stop using monetary bond in the vast majority of cases and that the current reliance on bail bonds in New Mexico has proven to be a failure.
“The public has to understand,” he said, “our citizens are presumed innocent until proven guilty … and that this principle applies to both the rich and the poor. ”