How do we balance the rights of accused persons, who are presumed and often found innocent at trial, to pretrial release while ensuring these individuals do not harm others while awaiting trial? How do we timely move cases to trial while also balancing the rights of victims and accused persons? And, given that justice is expensive and resources scarce, how do we pay for it all?
There are no easy answers. These are complex problems that require complex solutions. But, in Bernalillo County we do have one advantage. We have a justice system, which includes legislators, agencies, courts, attorneys and private individuals, working together to find ways to improve the quality of justice it delivers for everyone.
Is it a perfect system? No. But, we are trying to make it better with a variety of reforms.
Discussions regarding reform began in earnest in 2013, when the Legislature created the Bernalillo County Criminal Justice Review Commission.
Commission partners include the 2nd Judicial District Court, Metropolitan Court, the District Attorney’s Office, the Law Offices of the Public Defender, the County Commission, the Albuquerque Police Department, the Administrative Office of the Courts, Probation and Parole, and the Association of Counties.
The commission’s charge is to find ways to improve the criminal justice system and the resulting quality of justice in Bernalillo County.
Commission partners have worked together to initiate a variety of reforms. Examples include expedited probation violation hearings, the adoption of an objective risk assessment instrument to aid judges with pretrial release decisions, expanding the early plea program, creating a new supportive housing program for persons with mental illness, expediting medical evaluations for those individuals who will transfer from jail custody to treatment programs, the creation of working groups to facilitate communication between commission partners, and the commission’s endorsement of the Supreme Court’s Case Management Order.
This last reform – the Supreme Court’s Case Management Order – has been in the news quite a bit recently.
One of the CMO’s primary goals is to ensure cases timely move through the system once they are filed by the district attorney. Prior to the CMO’s enactment, a variety of factors had led to a significant backlog of cases.
The Supreme Court enacted the CMO to help address the problem. In crafting the CMO, the justices solicited input from all of the commission partners, invited partners to propose draft rules and held open public meetings.
The eventually adopted CMO includes ideas garnered from all of those who participated. The Supreme Court may modify the CMO after additional input. The CMO governs discovery, the time a case has to go to trial and how cases are assigned to judges.
Contrary to recent public comments, the CMO says nothing about how pretrial release decisions are made. Pretrial release of a defendant is governed by other statutes and rules, as well as both the New Mexico and U.S. constitutions.
The courts have backed a proposed constitutional amendment that would allow for pretrial detention in cases involving defendants who pose a significant risk to the community – but those changes must come in the form of a constitutional amendment and have nothing to do with the CMO.
Dismissals, another recent criticism, do happen under the CMO and consist of primarily two types.
The first type of dismissal – a nolle prosequi – is where the district attorney dismisses a case because prosecutors are unable to proceed to trial due to witness unavailability or refusal to testify, or when the district attorney’s office realizes it cannot prove all of the elements of a charge. This type of dismissal existed prior to the CMO and accounts for 65 percent of the recent dismissals.
The second type of dismissal is where the court dismisses a case because of the district attorney’s failure to meet deadlines, often because the district attorney’s office has failed to turn over discovery to the defense, has not obtained the results of forensic tests, has not made its witnesses available for interview, or is not prepared to go to trial.
Importantly, about 95 percent of these dismissals are without prejudice. These cases can be re-filed when the district attorney’s office becomes prepared to go forward.
Implementation of the CMO and other reforms has been challenging for all of the justice partners. The District Court has tried more than 120 cases over this past summer, more than three times the amount of trials normally held during the same period and has implemented extraordinary measures taxing to judges and court personnel.
Change is often painful and usually difficult, but the aims of these reforms are good. Many have been successful in other jurisdictions, and we believe that they will leave Bernalillo County in a better place than where we started.
The only way to solve complex challenges is to tackle them together. We hope that our community – including commission partners, the news media, legislators, and the public – will remain committed to constructive discussion and justice reform.
Nan G. Nash is chief judge of the 2nd Judicial District Court (Bernalillo County). Opinions expressed here are solely those of the judge individually and not those of the court.