SANTA FE, N.M. — How bail bonds are handled in New Mexico is expected to be the subject of a proposed amendment to the New Mexico Constitution next year, but judges in Santa Fe County Magistrate Court are already changing the system based on a state Supreme Court decision from last year.
Bail for defendants arrested on misdemeanor charges is no longer being set on a predetermined schedule, meaning arrestees have to see a judge before a bail amount for release from jail is determined.
Also, more people who get arrested are being let go without having to make bail. These defendants pay only if they don’t show up for court as required.
The changes apparently aren’t good for the bail bond business.
“We’re doing a very small percentage of what we used to do,” said Santa Fe bail bondsman Jerry Gonzales. “I’ve had to let employees go because of this. We’ve been in business for 34 years and this is the worst it’s ever been.”
Last November, the state Supreme Court said in a nearly 50-page ruling that New Mexico judges should base their bonds on several risk factors and not just the criminal charge a defendant faces. The high court did so after 19-year-old Walter Brown sat in jail on murder charges for more than two years because he couldn’t afford the $250,000 cash or surety bond imposed at his 2011 arraignment.
The Supreme Court said a District Court judge was wrong in imposing the $250,000 bond when evidence showed that less restrictive conditions of pretrial release were sufficient to assure Brown would show up for his next court appearance.
After the ruling, Administrative Office of the Courts director Arthur Pepin sent an advisory to all magistrate judges statewide to stop using bail bond schedules or “jailhouse bonds,” which set specific bond amounts for certain charges. That system allowed people arrested to post the bond set for their particular criminal charge and get out of jail without having to wait for arraignment before a judge.
Pepin rescinded that advisory a day or two later when the Supreme Court decided to set up a group – the Ad Hoc Pretrial Release Committee – to make recommendations on bail reform. Pepin said the committee, chaired by former University of New Mexico School of Law Dean Leo Romero, should have its recommendations out by December.
A proposed constitutional amendment, which Pepin said is already drafted, would allow pretrial detention without bond for defendants who pose a threat to the community or are deemed a flight risk.
Also, a so-called preventive detention provision would be intended to prevent keeping people in jail simply because they can’t afford bond, as was the case with Brown in the case decided by the Supreme Court.
All people are “bailable by sufficient sureties” under the current wording in the constitution. The Supreme Court found that high bonds that judges set on dangerous offenders to keep them behind bars pending trial or disposition of their charges violated that provision.
Although constitutional changes in the bonding system are still only proposed – a constitutional amendment would have to be placed on the ballot by the Legislature and then approved by voters statewide – Santa Fe Magistrate Court has already ditched its bond schedule that allowed people arrested for certain misdemeanors to go free without seeing a judge if the defendant or a bail bond company came up with the bail amount that was set on the schedule.
For example, a driving with a suspended or revoked license charge required $2,500 surety bond to get out of jail. Now, people are held at the county jail until they can see a judge on the next business day.
Reaction to ruling
Santa Fe Magistrate Court Judge David Segura said Magistrate Court got rid of the bond schedule immediately after the Supreme Court’s Brown ruling and didn’t re-install the schedule even after Pepin rescinded his advisory on the issue.
With the bond schedules, defendants would typically post the bond and then go to court to face a judge within seven days. Without the schedules, defendants are held until they can see a judge on the next business day.
Over weekends, the four Santa Fe County magistrate judges take turns for arraignments. They visit the jail to find probable cause and set bonds at least once Saturday or Sunday, according to acting Magistrate Court manager Michelle Portillo.
Segura said on his regular arraignment days he goes down to the Santa Fe County jail at 6 a.m. and picks up paperwork on everyone arrested in the past 24 hours.
He said he and other judges now consider about 12 factors – such as evidence, medical conditions and family ties in the community – when setting a bond after probable cause has been determined.
Segura said the court had previously removed domestic violence charges from the bond schedule, about five years ago, because judges were worried defendants who could make bail and get out of jail quickly would immediately return the home to where the violence took place, setting up the possibility of continued trouble.
Also, DWI charges were taken off the schedule about three years ago because the judges kept seeing people booked on their third or fourth DUI offense, said Segura.
In those cases, Segura said, the Santa Fe magistrates were meeting the terms of the Supreme Court’s Brown decision even before it came down, Segura added.
Segura said a monetary bond isn’t always necessary and doesn’t always guarantee community safety, and that’s one of the biggest ideas behind the proposed reforms.
“Being poor shouldn’t keep you in jail,” Pepin said. “You should be in jail if you are very dangerous.”
The changes are meeting some resistance. Gerald Madrid, president of the New Mexico Bail Bond Association and owner of Albuquerque-based Gerald Madrid Bail Bonds, which also has a Santa Fe operation, said it’s wrong for the court to hold someone until they can see a judge because the state constitution states that all people who get arrested are bailable.
Before a defendant sees a judge, he said, “no amount of money can get someone out of jail. The schedules should be brought back.”
As a result of removing the bond schedule, judges may be setting fewer bonds that require the posting of a dollar amount, much to the dismay of bail bondsmen, who make money off monetary bonds.
Gonzales, the Santa Fe bail bondsman, maintains about 90 percent of defendants charged in Magistrate Court are now being released on unsecured bonds, where only a signature is required and a defendant pays cash only if they miss a court date without a good reason. Since bail bondsman typically collect 10 percent of surety bonds, he said his business is at an all-time low.
Segura said that a high number of people are in fact being released on unsecured bonds, but he said those defendants aren’t flight risks. “I would say there is a significant number of people released on unsecured bonds and I would say rightfully so,” Segura said. “They’re not a danger to the community, so that’s where the unsecured bonds come in.”
Pepin said the Supreme Court does not intend to put bail bondsman out of business, but that may have to be a side effect of the proposed changes. “I think that some judges have read the Brown decision and are taking that seriously,” Pepin said. “The effect may be that fewer bail bonds are being posted.”
Madrid maintained that the practice of releasing more people on unsecured bonds puts the community in danger. “They release serious felons and violent offenders on nothing more than a promise to appear in court,” he said.
Madrid also took a shot at the Supreme Court’s idea that several factors and not just the crime itself should be considered when determining the conditions of pretrial release. He said the crime should tell a judge exactly how dangerous a defendant is.
“The Supreme Court is telling judges to not consider the crime that was committed,” Madrid said. “The crime should be the first thing they consider because that tells you what that person was capable of. They’re more concerned with the criminal history. That holds more weight than the actual crime.”
Regardless of what the Supreme Court’s Pretrial Release Committee recommends or whether a constitutional amendment is approved, some still believe bond schedules should be a thing of the past. “Judges should consider several circumstances,” Pepin said. “It’s hard to see how that requirement can be made on a bond schedule.”