Catch and keep
Clarity is needed ASAP on using pretrial detention
New Mexico voters, many of them fed up with a “catch-and-release” criminal justice system, overwhelmingly approved a constitutional amendment last fall allowing judges to deny bail to defendants who present a significant danger to the community while awaiting trial.
But implementation of the new system here in Bernalillo County has been rocky at best.
District Attorney Raúl Torrez has complained that some judges have set up unreasonable roadblocks, essentially requiring “mini-trials” in order to find pretrial detention is necessary. And that, he says, is ignoring the will of the 89 percent of voters who approved the amendment while also putting the community at risk.
Defense attorneys and some judges counter that the prosecution is overswinging in some cases, seeking nobond detention when it isn’t warranted and failing to meet legal requirements in others. At least one judge has appeared to ignore all the good intentions of the constitutional amendment by, in more than one case, refusing to grant the prosecution’s pretrial detention request but then setting a cash bond of $100,000 — which defendants are unlikely to make. In one case, the defendant was charged with 55 counts of armed robbery. As of Friday, that suspect was still in jail and facing more than 200 counts.
The constitutional amendment was supposed to both enhance public safety and get away from the “money for freedom” system. Instead, the decision on whether the defendant should remain free pending trial was supposed to be based on danger to community rather than ability to round up a bondsman who could post bail — which in many cases allowed the accused the option of going back to his/ her career of burglary, auto theft or convenience store holdups while awaiting trial.
Further complicating the picture is the fact the District Court’s risk assessment tool to help determine the defendant’s danger level does not take into account prior arrests unless charges from those arrests are currently pending or have resulted in a conviction.
The reasoning is that if the charges are dropped, they shouldn’t count against the defendant. But in a district where thousands of cases were voluntarily dismissed by Torrez’s predecessor because of court-imposed time limits and dysfunction in the DA’s office, that falls into the “ignorance is bliss” category for the judge making the decision, and “what you don’t know can literally hurt you” for the public.
It would seem a judge would want to know about an especially eye-popping arrest record when weighing all the factors in deciding whether no-bond detention is warranted or some lesser restriction will suffice.
Thankfully, Torrez has appealed two of the pretrial detention denials to the Supreme Court, which will hear arguments April 12 and hopefully will soon thereafter issue much-needed guidance. It’s worth noting that defense lawyers also say there is no consistency from judge to judge, or even by the same judge from day to day.
These aren’t simply academic legal issues. This is about whether dangerous defendants are set loose pending trial, or under what kind of restrictions they might be set free. And it’s about equity and uniformity for defendants as well as victims.
As the Supreme Court sets out the mechanics, it could do well to look at the way federal court operates — its system allows for pretrial detention. Prosecutors and defense attorneys lay out their case on detention by using “proffers,” which are summaries of facts and legal arguments, no “mini trials” or law enforcement witnesses required.
New Mexico voters have given the legal system the flexibility it said it needed to keep the community safe while following the rule of law. It will be up to the court to do its part by making sure the system isn’t so burdensome it is rendered worthless, and we simply revert to “catch and release.”