FOR THE RECORD: This story reported that a state Supreme Court advisory committee in December rejected a proposed court rule that would prohibit defendants from being held pending trial solely because of a financial inability to post bail. However, according to the Administrative Office of the Courts, the committee later reconsidered the issue and a majority voted for a proposed court rule that reads, “No person eligible for pretrial release under Article II, Section 13 of the New Mexico Constitution shall be detained solely because of financial inability to post a secured bond.”
Copyright © 2016 Albuquerque Journal
The bail industry, already under siege because of changes in the pretrial release system for people charged with crimes, says it will be in a fight for its economic life when the state Legislature convenes Tuesday.
On lawmakers’ agenda is a two-part proposed amendment on bail to the New Mexico Constitution. The first part would allow judges to deny bail to dangerous defendants; the second part would prohibit defendants who aren’t a danger from being held prior to trial solely because of a financial inability to post bail.
The bail industry says it doesn’t have a problem with part one, but contends the second part would lead to a flood of appeals from defendants claiming they should be released without bail because they can’t afford it. The industry believes judges would for the most part stop requiring commercial bail to avoid drowning.
“It essentially does away with us,” says Albuquerque bail bondsman Gerald Madrid, president of the Bail Bond Association of New Mexico and a member of a family with three generations in the bail business across the state.
Madrid also says that allowing defendants to go free because they say they can’t afford bail would open the floodgates for release of criminals, including repeat offenders, who aren’t dangerous enough to be held without bail but still pose threats to public safety. Law enforcement, not bail bondsmen, would have to go after them when they fail to appear in court.
The industry, with the help of two of the best connected lobbyists in Santa Fe, will try to convince legislators to axe the part of the proposed amendment dealing with financial inability to post bail.
State Attorney General Hector Balderas also says the provision needs further review and he isn’t supportive of it. He says he supports the first part of the proposed amendment as a means to keep dangerous criminals off the street.
But Sen. Peter Wirth, D-Santa Fe, a prime sponsor of the proposed amendment, says the provision on financial inability to post bail is needed to sell some lawmakers on the first part dealing with pretrial detention of dangerous defendants.
“I think it’s very much a package deal,” says House Majority Leader Nate Gentry, R-Albuquerque, also a supporter of the proposed amendment.
The bail industry says it doesn’t believe removing the provision dealing with financial inability to post bail would kill the proposed amendment.
Wirth rejects the argument that courts would be overburdened in dealing with indigency claims from defendants who can’t make bail. “This is not rocket science,” he says. “We already do this in determining whether someone is entitled to a public defender.”
He also says there is a fairness issue. Defendants shouldn’t be held pending trial because they can’t afford bail, while other defendants go free because they have the financial resources to make bail, Wirth says. A bail bonds company typically charges a 10 percent fee to post a bond for a defendant’s release.
The United States and the Philippines are reported to be the only countries whose pretrial release systems are dominated by commercial bail bond companies. A group called Equal Justice Under Law has filed several lawsuits around the country, alleging that keeping people jailed solely because they can’t pay a cash bond violates the U.S. Constitution. The U.S. Justice Department has sided with the group.
State Supreme Court Justice Charles Daniels, an outspoken supporter of the proposed constitutional amendment, has said it is established law that a person cannot be held because of a financial inability to post a bond, but the industry argues that the question hasn’t been settled by the courts.
The proposed constitutional amendment has bipartisan support. In addition to the Supreme Court, other backers include the state District Attorney’s Association, the New Mexico Criminal Defense Lawyers Association and the American Civil Liberties Union.
“The proposed amendment will help protect our communities without eroding the rights of accused citizens to fair and impartial justice while they are still presumed to be innocent” pending trial, says Artie Pepin, director of the Administrative Office of the Courts.
Despite the backing of the Supreme Court, the second part of the proposed amendment could face some opposition from trial judges.
In December, a Supreme Court advisory committee on bail rejected a proposed court rule that would prohibit defendants from being held pending trial solely because of a financial inability to post bail.
In a letter to the Supreme Court, judges for the Bernalillo County Metropolitan Court in Albuquerque said they were concerned about the added work of holding hearings to decide if defendants were being held solely because of a financial inability to post bail.
Karen Mitchell, a longtime magistrate judge in Harding County, wrote to the court that she was concerned that courts would become “ripe for numerous and extensive hearings on the issue of bond.”
Chief District Judge Karen Townsend of Aztec posed this question to the Supreme Court: “What could be a principled response to a person who argues: ‘I just don’t think I should have to pay my bond when others don’t have to pay their bonds?’ ”
One other significant hurdle for the proposed amendment could be the Senate Judiciary Committee, which is chaired by Richard Martinez, D-Española. Martinez has said he is concerned that judges would abuse the provision allowing for pretrial detention of dangerous defendants without bail. He couldn’t be reached for comment for this story.
If approved by the Legislature, the proposed constitutional amendment would go before voters in November.
Right to bail
Currently, nearly all defendants are entitled to bail under New Mexico law, and Daniels says the result is that dangerous defendants are being released on bail, while defendants who pose no danger are being held simply because of a financial inability to post bail.
The proposed constitutional amendment would allow a district judge to deny bail to a felony defendant if the judge found there was clear and convincing evidence that no release conditions would reasonably protect any person or the community.
The Supreme Court ruled in 2014 that, with few exceptions, a defendant must be released pending trial on the least restrictive conditions necessary to reasonably assure the person’s appearance in court and safeguard the public. A judge can require a defendant to post a secured bond either individually or through a bail bondsmen only if other release conditions won’t reasonably guarantee appearance in court and public safety.
Since the court ruling, some judges have sharply increased the number of defendants being released on personal recognizance or upon the execution of an unsecured appearance bond, which is a promise by the defendant to pay a certain amount of money should be the person fail to appear in court. The bail industry says that has sharply reduced its business.