NM bail reform needs to be fixed

Return to judges the discretion to impose jailhouse bond schedules

Nearly four years ago, New Mexico’s then-chief justice, Charles Daniels, advocated for a change to the state’s Constitution. Pushing for a no-money bail system, he held that jailhouse bond schedules were unconstitutional. Unfortunately, while well-intentioned, his plan was flawed and destined for disaster from the outset.

A colleague and I negotiated directly with Chief Justice Daniels along with legislative leaders on language that appeared in the resulting constitutional amendment. Despite his great desire for the panacea of a no-money bail system, a compromise was eventually reached, with the Legislature wisely refusing to go along with him.

The new hybrid bail system created was actually well-conceived, taking good parts from the no-money bail system, while retaining existing tools available to judges, including offering release from a schedule, setting bail and granting free releases based on a promise to appear.

Unfortunately, the state Supreme Court decided to take matters into its own hands and implemented a broken version of the new system, which completely handcuffed judicial discretion to set appropriate bails.

Without bail as a judicial option, an individual can be kept in jail pending trial only if it can be proven by clear and convincing evidence that he or she is a danger or flight risk. If an algorithm-based risk-assessment tool declares a defendant low risk, there is little chance a prosecutor can prove the need for detention. This is the current situation in New Mexico and occurs repeatedly.

Three things should be done. First, the Legislature should repeal court rules on bail and restore them to what they were before the constitutional amendment passed, then immediately pass legislation implementing them as originally intended. This includes returning to judges the discretion to impose jailhouse bond schedules and set appropriate monetary bails.

Legislation should include expanded funding for preventative detention hearings when DAs seek to deny bail. Also, timelines no longer than 48 hours should be specified, with funding provided to review cases of individuals who have had their bails set by a schedule or judge, but are unable to bail out.

Second, the Legislature should force an audit of the state’s courts to determine the true impact of pretrial release. The statistics are undoubtedly dismal — government programs always fail to release negative findings.

Third, it’s time for sunshine and transparency on the Arnold Foundation’s Pretrial Risk Assessment tool. Last year, Idaho’s lawmakers agreed on legislation forcing transparency of the underlying data and math behind the algorithm. Idaho’s HB 118 was signed into law earlier this year and was actually endorsed by John Arnold himself. If the builder of the algorithm agrees that the tool should be open and accountable, New Mexico should demand the same.

The no-bail movement that Chief Justice Daniels once spearheaded has become derailed. In vogue only a few years ago, groups of all political stripes across the country have denounced their previous positions. More than 250 organizations and companies, including the ACLU, Google, IBM and NAACP, have come out against the use of pre-trial risk assessments to replace bail.

It is noteworthy that since preventative detention was constitutionally expanded in New Mexico in 2016, no other state has followed its lead. The sheer volume of news stories reporting on the negative effects of bail reform where it has been implemented has been impossible for legislators to ignore.

With properly constructed legislation, New Mexico’s bail system can be better than it was before — allowing for detention of those clearly too dangerous to be released, while making certain the indigent don’t languish in jail. It should also restore the previous accountability in the system, which was created through monetary conditions of release and by the authority granted to private bail agents to chase down and arrest suspects found to be in violation.