Proposed tweaks to new detention rules have merit

When the New Mexico Supreme Court approved new pretrial detention rules earlier this year — rules designed to help judges determine whether a criminal defendant should be held without bail — it was anticipated that as the sweeping reforms were implemented, fine-tuning would be needed.

Now, three months after the rules took effect, eight of the state’s 13 district attorneys are proposing changes that provide needed clarity and uniformity in how detention hearings are conducted.

The court should listen to them, just as it listened to New Mexico voters.

Back in November, voters overwhelmingly approved an amendment to the state Constitution to allow defendants who pose a danger to the community to be held in jail without bond pending trial. Prior to that, judges were required to set a “reasonable” bail for nearly all criminal defendants. That sometimes resulted in well-heeled defendants with violent criminal histories being released within hours, while poor defendants facing non-violent charges languished in jail for months awaiting trial.

As state Supreme Court Justice Charles Daniels said at the time, the old system meant defendants could “buy their way out” by posting bond.

In response to the amendment, the state Supreme Court issued a comprehensive set of rules in June — the result of two years of study by an ad hoc working group of lawyers, judges, bail bondsmen and others. Those rules kicked in July 1 and permit some people arrested on minor offenses to be automatically released on their personal recognizance while extremely dangerous defendants can be held without bond.

Yet the devil is always in the details, and the group of DAs, who represent both political stripes as well as rural and urban communities, says that more clarification is needed. The DAs say some judges are requiring prosecutors to offer hours of testimony before deciding whether to hold a defendant without bail. And some say so many more defendants are being released that the number of warrants for failing to appear have skyrocketed.

Their proposal, called “even-handed and conservative” by Rick Tedrow, the president of the state District Attorney’s Association and the DA in San Juan County, would make it clear that:

Judges can consider a variety of factors in declining to release someone, including the nature of the crime charged, the weight of the evidence and the defendant’s history.

Some evidence may be introduced during a detention hearing but courts “shall not require any party to submit evidence or information in any particular form.”

The purpose of a detention proceeding is limited to determining whether the defendant presents a danger to the community.

The DAs need to add flight risk to that last one, because as Dianna Luce, prosecutor for Eddy, Chaves and Lea counties, points out, failure to appear warrants have skyrocketed in some jurisdictions since the new rules took effect. She says Hobbs police reported 150 defendants they arrested from January through June failed to appear in court, but since July 1 they have issued 230 warrants for failure to appear.

The underlying goal of the amendment and its rules is to ensure the right defendants are held before trial — those who pose a danger or a flight risk. Judges can still use bail to try to ensure a defendant shows up for trial — they just can’t use it to keep a defendant in jail because he or she can’t afford to pay.

For many judges, the new rules raise the bar a bit — they want clear evidence a defendant is a danger to the public before ordering he or she be detained. Sometimes documents are sufficient, sometimes a witness is needed. That’s a judge’s decision.

But the new rules were never meant to mandate mini-trials before a trial or open jail doors regardless of crime, history or likelihood of showing up in court again. The DAs are proposing a middle ground between that and the old system of defendants “buy(ing) their way out” of jail.

And justices, who have already done so much heavy lifting on bail reform and understand the importance of specificity in the law, should be able to help everyone in the system find it.