Eric Arellano has been locked up at the Metropolitan Detention Center since January awaiting several felony trials.
But lockup is a new look for him.
Arellano, 38, is one of an unknown number of benefactors of a local criminal court system that ignores many of his past arrests when a judge sets conditions for pretrial release.
That’s because the “risk assessment” form used by judges does not include a suspect’s past arrests if the charges were dropped, even if there were plans to refile them. And in Bernalillo County, thousands of cases have been dismissed by prosecutors in recent years.
In Arellano’s case, at least nine criminal cases against him have been dismissed since 2015.
Those included five stolen vehicle cases, two felony drug possession cases, a breaking and entering case and a residential burglary, according to police.
Because of those dismissals, every time he came up for a hearing to determine his conditions of release on his latest arrest, the risk assessment instrument used by Bernalillo County criminal courts rated him as a low risk to the community. He was often released with a small or no bond, often after spending just a few days in jail, according to police documents.
And he’s not alone. Other inmates with lengthy arrest records have received low scores because charges in the previous cases were dropped.
Many cases were dismissed because prosecutors were concerned they could not meet deadlines for discovery in Bernalillo County. The deadlines have been in place since February 2015.
District Attorney Raúl Torrez, who took over the 2nd Judicial District Attorney’s Office this year, is concerned the current system puts the public at risk.
He says he believes the risk assessment should consider a person’s total arrest history, adding that the scoring instrument has negatively affected public safety because so many criminal cases have been dismissed.
Torrez is currently working with local criminal justice professionals to try to make those changes, according to his spokesman.
But others say only convictions or criminal charges that are pending should be taken into consideration.
“Lots of innocent people get arrested,” said Matthew Coyte, the president of the New Mexico Criminal Defense Attorneys Association. “Why would you use an innocent arrest to keep more people in jail?”
Richard Pugh, a public defender in Albuquerque, said penalizing defendants for cases that have been dismissed would be highly unusual. He said he has analyzed instruments used in various jurisdictions around the country, and all penalize defendants for convictions and pending cases, not unproven allegations.
“We are not aware and do not believe that any nationally recognized tool uses arrests as a factor,” he said.
Pugh said Bernalillo County criminal courts are preparing to start using a new risk assessment tool, which he called the “gold standard” that “is considered by most to be the highest scientifically validated instrument currently in use.”
But it does not consider simple arrests either, he said.
Scoring system for risk
When people are arrested in Bernalillo County, their criminal backgrounds are put through the risk assessment process, which scores all defendants on a 1-15 scale meant to determine which inmates pose the greatest risk to the community. The higher the suspect’s risk to the community, the higher the score.
The score is one part of the system judges use in deciding where and under what conditions the suspect awaits trial.
Besides the risk assessment, judges also take into consideration the seriousness of the new charges and prosecutor and defense attorneys’ recommendations.
The risk assessment scoring method gives most weight to defendants who are charged with new offenses and already have a previous case pending. In that situation, the defendant would get an automatic seven points on his or her score. The assessment also takes into consideration whether the defendant has a history of failing to appear in court to face prior charges, and if the person has any prior felony or misdemeanor convictions.
Guidelines suggest that low-risk inmates charged with nonviolent felonies should be released on their own recognizance, while high-risk defendants charged with serious crimes should be held on a high bail or no bond.
The process does consider a high number of arrests to be an aggravating factor that can influence the judge’s decision. But the number of arrests don’t factor into the person’s 15-point score.
Revolving door at MDC
It’s unclear how many suspects with multiple arrests have had their charges dropped, but Torrez believes there could be many.
In recent years, prosecutors voluntarily dismissed thousands of cases – estimated to be close to 3,000 criminal cases – because of fears that prosecutors couldn’t meet deadlines for turning over evidence to the defense.
A case management order approved by the state Supreme Court set the deadlines. They were put in place because the MDC was overcrowded with people who were jailed, sometimes for years, waiting for trial.
If those suspects who had their crimes dismissed were rearrested, the risk assessment instrument wouldn’t take into consideration the charges they racked up that were dismissed by prosecutors.
That’s contributed to what law enforcement officials have described as a revolving door at MDC that has damaged public safety.
“It doesn’t count arrests and it doesn’t count referred cases, it only counts charged cases,” Torrez said of the risk assessment used in criminal courts. “So there’s an interplay between the risk assessment instrument that the court is relying on and the (case management order).”