Don’t bail on reform

Repealing NM amendment not the solution

Should the constitutional amendment that voters overwhelmingly approved last year to reform the bail bond system in New Mexico be repealed and replaced as advocated by Gov. Susana Martinez and others? No.

Should the system that has been put in place to implement that amendment be modified so that in practice it does a better job of keeping dangerous defendants in jail pending trial?

Absolutely.

Unless changes are made, public confidence will erode and we could find ourselves reverting to the old “money for freedom” arrangement that made the bail bond industry an immensely profitable one — even though it punished the poor and did virtually nothing to keep us safer.

In adopting the amendment last year, New Mexico moved to a more enlightened and more effective framework. There is no good reason people charged with relatively minor crimes should be held in jail for months at taxpayer expense awaiting trial simply because they can’t afford a bondsman. In fact, that too often keeps those defendants from working, supporting families and contributing to the community. And there is every reason to keep dangerous defendants and those who pose flight risks behind bars while awaiting trial even if they — or their family or their gang — can write a check to a bail bondsman and walk out the jailhouse door.

This philosophy is consistent with the goal of Bernalillo County District Attorney Raúl Torrez to throw the book at serious and repeat offenders while diverting others who aren’t in that category into diversion and treatment programs.

So why the heartburn from the governor, district attorneys and others who supported the amendment? (It’s worth noting that the state’s criminal defense lawyers and the ACLU did not.) The governor, who is a former prosecutor, says the amendment must be repealed and replaced because it is not doing what it was intended to do. Instead, the “judiciary is using these new provisions to return criminals back to our neighborhoods and it must stop.”

The state’s 13 DAs have not called for repeal and replace but are unified in their contention the system needs to be uniform statewide and judges should not be able to require what are in effect mini-trials with witnesses to hold a dangerous defendant without bond pending trial. Defense lawyers, of course, are charged with representing their clients, so they are only too happy to turn pretrial detention hearings into discovery sessions with various pitfalls for prosecutors.

The prosecutors have asked the Supreme Court to issue clarifying rules, and the justices have promised to review the request — while also asking for defense lawyer input.

Further complicating the matter, the state District Court in Albuquerque is using a system from the Arnold Foundation to come up with defendant risk assessments for judges to consider. The tool is flawed in several ways, including the fact it doesn’t consider a history of arrests unless there are convictions. With the dysfunction we have seen in the criminal justice system here over the past decade, that borders on fantasy when trying to assess how dangerous a defendant might be — a fantasy that puts the public at risk.

At best, the Arnold assessment should be just one factor to take into consideration and not a document that determines release and conditions. Some judges who are thorough and concerned with public safety have in the past looked at NCIC (National Crime Information Center) and other data in setting bond. That kind of bigpicture approach is still sound in determining release and conditions.

To be clear, the old bail bond — or freedom for money — system that stems from medieval times needed to go. But the new system is not working as intended. Repealing and replacing the new amendment would take years and be an uphill battle at best, while revising court rules to provide clearer guidelines to judges would build on good work that has already been done. And the state Legislature could look at new statutes aimed at clarifying when someone should be released or kept in jail before trial — as long as they don’t contradict the court rules.

New Mexicans took a huge step in the right direction when they passed the bail amendment. The next step is for state leaders to ensure it takes everyone down the road to justice.