RUIDOSO – New Mexico’s top judge hopes voters notice a proposed constitutional amendment on the November ballot that offers them a better chance to strike a blow for liberty and justice than any other vote they may cast.
The amendment would let criminal court judges order dangerous defendants held without bond before trial, and make it less likely that low-risk defendants are forced to wait in jail for their trials only because they’re too poor to bond out.
“There is nothing I’ve done or will do on the court that is going to be a more important improvement of justice than getting this amendment passed,” said New Mexico Supreme Court Chief Justice Charles W. Daniels in an interview here Saturday.
Daniels said he is speaking to as many groups as he can around the state to urge support for the amendment. He plans a major address on the subject next month to the New Mexico Bar Association. He spoke to the News while relaxing Saturday at his second home here.
“The unthinking reaction that putting a pricetag on getting out of jail protects somebody is wrong,” Daniels said. “It’s wrong in theory, and it’s wrong in reality.”
The New Mexico Constitution currently requires that nearly every non-capital defendant be granted bail, even those who pose a known threat to witnesses, family members or potential victims of fresh crimes.
Daniels said many judges facing a clearly dangerous defendant but forbidden to deny bail outright will set extremely high bail in hopes the defendant won’t be able to post it. But some do “scrape up the fee,” Daniels said, and in any event the same constitution that requires that bail be set also requires that it not be “excessive.”
“So judges either protect the community or they follow the law,” Daniels said. “They should never have to make that choice.”
The other side of the issue, Daniels said, is that courts have been setting high bail amounts based on the severity of the crime charged, even when the defendant isn’t dangerous and poses little risk of failing to show up for trial.
“Neither the Constitution nor our rules of criminal procedure permit a judge to base a pretrial release decision solely on the severity of the charged offense,” Daniels wrote in a 2014 court opinion. “Bail is not pretrial punishment and is not to be set solely on the basis of an accusation of a serious crime”
That case, New Mexico v. Brown, was what first drew Daniels’s attention to the need for bail reform in state courts, a national movement which has been gathering momentum for more than half a century.
It was a murder case in which lawyers for the defendant were appealing a $250,000 bond that the district court had refused to reduce, even though the judge accepted the convincing evidence that the defendant posed no threat or flight risk.
The state Supreme Court ordered the district court to set “appropriate nonmonetary conditions” of release, and Daniels took the opportunity in his 21-page opinion to trace the origins of New Mexico’s constitutional bail provisions and point out their drawbacks.
The proposed amendment would allow a judge to deny bail to a felony defendant on “clear and convincing evidence that no release conditions will reasonably protect the safety of any other person or the community.”
It would also require that a defendant who is neither dangerous nor a flight risk “shall not be detained solely because of financial inability to post a money or property bond.”
Daniels said the amendment hasn’t drawn much vocal opposition yet, but he expects there will be some from the bail bond industry, which has fought bail reform in other states and tried to bottle up the New Mexico ballot proposal in the legislature earlier this year.
The new president of Professional Bail Agents of the United States, former reality television star Beth Chapman of “Dog and Beth: On the Hunt,” recently declared war on bail reform.
“Any reform in any of the states is a threat to them nationally,” Daniels said.
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