Governor wrong on new bail rule
Facebook ranting not the way to address debate on crime
Gov. Susana Martinez recently lashed out on Facebook and blamed the 2016 preventative detention constitutional amendment (CA) as a major contributor to Albuquerque’s crime problem. The CA grants judges the authority to hold proven dangerous defendants in jail without bond pending trial. The CA also states that those defendants who are not dangerous and not a flight risk shall not be detained solely because of an inability to pay. It was passed by 87 percent of the voters.
The governor is wrong — the voters got it right.
Multiple dynamics have contributed to our city’s crime problem, but the CA is not one of them. Governor Martinez draws a connection between the CA and the courts’ new procedural rule on pretrial release, Rule 5-401. The connection the governor wants us to draw simply does not exist.
The courts issue their own rules to manage and administer their numerous caseloads. Two recent rule changes were developed simultaneously but became necessary for two different reasons. They are related but distinct and were developed to make sure our courts are following the U.S. and N.M. Constitutions.
Rule 5-401 was changed because of the 2014 State v. Brown decision. The Brown decision ordered the release of Mr. Brown, who was held on excessive bail, and outlined the purposes and controlling legal principles for setting bail and for future pretrial release decisions.
The U.S. Supreme Court had previously addressed pretrial detention in U.S. v. Salerno in 1987 and set forth the minimum procedural and substantive due process requirements to detain an individual without violating the U.S. Constitution. The Brown decision incorporated Salerno and the N.M. Constitution, which has always required that people be released pending trial with very few exceptions. From a practical standpoint, the fixed jailhouse-issued bonds previously adopted by the courts were no longer allowable due to Brown. Prior to Brown a bond amount was arbitrarily based on just the crime charge. Today a more thorough individual risk assessment is done to determine whether the defendant is dangerous or a flight risk.
As a result of Brown, the Ad Hoc Pretrial Release Committee was formed in March 2015 to change procedural Rule 5-401 regarding pretrial release. It is on Rule 5-401 and its implementation that I believe the governor’s criticisms should fall.
In August 2015 the committee expressed a desire to hold defendants without bail, and the idea of a preventative detention constitutional amendment was proposed to the Supreme Court. The Supreme Court then took the committee recommendation to the Legislature, which passed the proposal to the voters.
The committee continued working on the pretrial release rule prompted by Brown and create a new pretrial detention rule necessitated by the CA. On July 1, 2017 the changes to Court Rule 5-401 and a new Court Rule 5-409 were adopted.
The only provision of Rule 5-401 that was modified due to the passage of the CA was paragraph G, which states that if the prosecutor files a detention motion the court shall follow Rule 5-409.
Many, including myself, have expressed concerns with Rule 5-401 and its interpretation. Those concerns are best shared with judges themselves instead of on Facebook. It is my understanding that the Supreme Court is making plans to reconvene the committee to tweak Rule 5-401.
The governor’s Facebook post is misleading by incorrectly linking the CA with Rule 5-401. These inaccuracies on social media are unfortunate and add anger and confusion to an already complex problem.
Albuquerque has a serious crime problem and needs serious people to solve them. New Mexico deserves a governor who participates in solving those problems instead of ranting nonsense.