OPINION: Cashless bail has been an utter failure in NM since its adoption a decade ago

One man or woman on a mission can leave a profound legacy on our criminal justice system. And I’m not talking about President Donald Trump, although he has entered the fray on bail reform.

I’m referring to late New Mexico Supreme Court Chief Justice Charlie Daniels, who sold New Mexicans a bill of goods a decade ago that none of us bargained for.

We met with Daniels at the Roswell Daily Record in 2016 as he toured the state’s newspapers pushing for the passage of a constitutional amendment on bail reform. Daniels and other Democrats didn’t mention that the measure would decimate the use of cash or property bonds in courtrooms across New Mexico, which it did. The proposed constitutional amendment was instead pitched as a public safety measure, although it turned out to be anything but.

To remind readers, here’s what we voted on in November 2016.

“Proposing an amendment to Article 2 of the Constitution of New Mexico to protect community safety by granting courts new authority to deny release on bail pending trial for dangerous defendants in felony cases while retaining the right to pretrial release for non-dangerous defendants who do not pose a flight risk.”

The way it’s worded, I might vote for the constitutional amendment again today — if I didn’t know it’s true intent and impact. The amendment passed with a whopping 87.2% of voters in favor. It’s hard to get 87% of people to agree on the correct time of day, but the coordinated disinformation campaign led by Daniels and liberal progressives really pulled the wool over our eyes a decade ago.

Today, New Mexico judges rely largely on the infamous Arnold Risk Assessment Tool as a crutch to determine whether or not someone is a flight risk. Under the adopted constitutional amendment, a defendant who is not deemed a danger to the community or a flight risk cannot be denied bail solely because of the defendant’s financial inability to post bond, laying the foundation for our catch-and-release criminal justice system.

Gerald Madrid, of Albuquerque, one of the last full bail bond agents in New Mexico, told me last week the adoption of the constitutional amendment has had a profound effect on our criminal justice system.

“Check any county jail, it’s my understanding that everybody in (the Metropolitan Detention Center) now is being held without bond,” Madrid said, adding judges in Roswell are the last ones in New Mexico utilizing cash bail. “There is no more right to bail. The judges have always had discretion and authority to set a bond, including now, but absolutely refuse to. And the question is why? Bail reform did not take away a judge’s discretion to set a secured bond.”

What is amazing to me, looking back, is that the Republican-controlled New Mexico House of Representatives voted 69-0 in mid-February 2016 in favor of Senate Joint Resolution 1, which would become the proposed constitutional amendment. The Democrat-controlled New Mexico Senate voted 29-9 in favor of the resolution sponsored by state Sen. Peter Wirth, D-Santa Fe, and then-state Rep. Antonio “Moe” Maestas, D-Albuquerque.

New Mexico Chief Public Defender Ben Baur told the Journal last month that many defendants spent months in jail under the old system because they couldn’t come up with $50 to post bail. What does that say about a defendant who can’t get a brother, auntie, parent, grandparent or childhood buddy to put up $50 to get them out of jail?

We’ve wised up since 2016. I wonder how New Mexicans would vote today in favor of a constitutional amendment reinstalling cash bail after a decade of high-profile crimes committed by defendants awaiting trial.

We’ll never find out, unless Republicans win majorities in both houses of the New Mexico Legislature, or if Trump follows up on a threat to withhold federal funds to states that have done away with cash bail.

Trump signed an executive order Aug. 25 that could spark a much-needed shakeup of New Mexico’s pretrial detention system. He directed Attorney General Pam Bondi to create a list of states and local jurisdictions that have substantially eliminated cash bail.

New Mexico should be at the top of that list. The executive order directs federal department and agency heads to identify federal funds to jurisdictions that could be withheld. That gives it some muscle that should give our state leaders something to think about.

The University of New Mexico published a report in 2021 examining more than 10,000 cases of pretrial releases in Bernalillo County from July 2017 through March 2020.

The report stated the vast majority of defendants released from jail pending trial appeared in court when scheduled, and only a fraction ended up reoffending while on pretrial release. But the study also found more than 450 cases involved arrests for new violent criminal activity ranging from domestic violence to stalking to involuntary manslaughter. In 13 cases, suspects not only reoffended, they were charged with a first-degree felony. The study showed, on average, every two to three months, someone was released from MDC pending trial for committing murder, kidnapping, armed robbery or rape.

No one voted for that in 2016.

One of those pretrial cases studied was the murder of UNM baseball player Jackson Weller. Weller’s killer, Darian Bashir, was on pretrial release for two other alleged shooting incidents when he shot and killed Weller outside a Nob Hill nightclub in May 2019.

Then there was the shooting death of Devon Trey Heyborne in April 2021. The 22-year-old pilot school student was murdered by 18-year-old Devin Munford, who had been on pretrial release after his arrest for shooting a pistol from a car. Munford left his approved zone and shot Heyborne twice with a shotgun when Heyborne answered his apartment door.

“The individual charged with killing my son had been released from jail and put on the ‘toughest of terms’ that the court can assign someone,” Heyborne’s mother, Angel Alire, wrote in a Oct. 3, 2021, Journal guest column. “The court released him with a GPS monitor, but come to find out (the court was not) monitoring after 5 p.m. or on weekends. That to me is reprehensible. In my heart I feel that if Devon’s killer was actually being monitored or detained before his trial, my son would still be alive. I feel let down by our system and by our state.”

Our catch-and-release system has been a failed social experiment and reasonable members of both political parties now recognize that. The question now is what to do about it?

I personally hope Trump comes down like a ton of bricks on our state’s pretrial release system so that it can be rebuilt from the ground up.

Jeff Tucker is a former Opinion editor of the Albuquerque Journal and a member of the Journal Editorial Board. He may be emailed at jtucker@abqjournal.com.