The Senate, in a unanimous vote and without debate, gave final approval Wednesday to the proposed amendment – the result of a compromise reached by key lawmakers, the state Supreme Court, the bail industry and others. The House, also unanimously, approved the proposed amendment, Senate Joint Resolution 1, last week.
The chief targets of the measure are dangerous “turnstile thugs” – those offenders who are jailed, only to post bail and commit more crimes while awaiting trial. Currently, under the state Constitution, nearly all defendants are entitled to reasonable bail.
Under the proposed amendment, a judge could deny bail to a defendant if there was clear and convincing evidence that no release conditions would reasonably protect the safety of any person or the community. “This amendment will give judges the tools they need to best protect our communities,” Democratic Sen. Peter Wirth of Santa Fe, a chief sponsor of the proposed amendment, said after the Senate vote.
Voter approval of the measure would bring New Mexico’s bail system more in line with federal laws and laws in some other states that permit pretrial detention of dangerous defendants.
Proposed constitutional amendments approved by the Legislature don’t go to the governor for signature or veto and instead go directly to voters. However, Gov. Susana Martinez’s top public safety official has endorsed the proposed bail amendment.
The proposed amendment includes a second provision designed to deal with defendants who pose no risk but are held in jail before trial simply because they can’t post bail.
Under that provision, a defendant who is neither a danger nor a flight risk couldn’t be detained before trial solely because of a financial inability to post a money or property bond. Most money bonds are posted by bail bondsmen, who charge a defendant a fee equal to 10 percent of the bond.
County officials pushed that provision, saying the release of defendants who pose no risk would help them trim their jail costs. Bernalillo County reported that as of Nov. 25, it had 57 jail inmates who had bail set at $100 or less but couldn’t post it. Another 123 defendants were being held on bail of $101 to $500.
“Bail should be based on risk, not resources,” Wirth said.
The bail industry initially opposed the provision dealing with defendants who pose no risk but agreed to support the proposed amendment after the provision was rewritten to make it possible for a judge to refuse a no-bail release to an indigent defendant if the defendant posed a flight risk.
Also, under the compromise, an indigent defendant who is neither a danger nor a flight risk may be required to file a court motion requesting relief from a requirement to post money bail.
Because of the changes to the provision dealing with defendants who pose no risk, the New Mexico Criminal Defense Lawyers Association and the American Civil Liberties Union of New Mexico withdrew their support.
“The original bill addressed the disparity and fundamental unfairness that allows the wealthy to post a bond while the common citizen sits in jail waiting for a trial. This new version no longer holds true to that goal,” said Matt Coyte, president of the defense attorneys group.
The movement to reform New Mexico’s bail system has its roots in a decision by the state Supreme Court in 2014. The justices said that, with few exceptions, a defendant must be released pending trial on the least restrictive conditions necessary to reasonably ensure 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 bondsman – only if other release conditions don’t reasonably guarantee appearance in court and public safety.
Courts around the state had drifted from the legal requirements by failing to assess the individual risks posed by defendants and instead relying in large part on so-called jailhouse bond schedules that set bail based on the crime alleged.
Since the court ruling, some judges have sharply increased the number of defendants 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 the person fail to appear in court.
There also is a national movement to reform bail. 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.
The United States and the Philippines are reportedly the only countries whose pretrial release systems are dominated by commercial bail bond companies.