Know when to hold them

Change law to lock up dangerous defendants pretrial, but don’t target nonviolent suspects

Gov. Michelle Lujan Grisham supports it. So does District Attorney Raúl Torrez, Mayor Tim Keller, Albuquerque Police Chief Harold Medina and some leading lawmakers of both parties.

And based on a recent Albuquerque Journal Poll, it’s clear the public supports it as well.

The “it” is a change to toughen up the state’s pretrial detention and release system by adding a so-called “rebuttable presumption” in pretrial proceedings for certain crimes and dangerous defendants in which they would need to show the court why it is safe to release them. As it stands, prosecutors are tasked with not only showing a defendant is dangerous but that no conditions of release would keep the community safe.

Some context is in order. The current system of pretrial detention replaced the old “money for freedom” bail bonds when voters in 2016 overwhelmingly approved a constitutional amendment that was intended to do two things: Keep low-level offenders who simply couldn’t afford to post bond, sometimes as low as $100, out of jail pending further proceedings. And two, give judges the authority to detain dangerous defendants without bond until their case moved forward toward a plea or trial.

The concepts were embraced by voters, and the policies behind the constitutional amendment were sound. Nobody who is not a threat to the community should be in jail simply because he or she can’t post a bond.

But the second part, which was extremely important in winning voter approval, has been more problematic, with some dangerous accused felons released either on recognizance or under relatively loose “supervision” by District Court pretrial services only to commit new crimes, some so heinous they shocked the community.

One of those cases came to a sad conclusion in state District Court last week when jurors convicted Darian Bashir of first-degree murder and evidence tampering in the shooting death of University of New Mexico baseball player Jackson Weller in May 2019. As proponents of a change in the pretrial detention system view it, Bashir should never have been on the streets; he was in fact on pretrial release for another shooting incident when he shot and killed Weller — a case that took jurors only a few hours to come up with their verdict and reject defense arguments Bashir had been “provoked” and acted impulsively.

Bashir’s earlier run-ins with the law show the system’s flaws and how it can be improved. He allegedly shot a young man in the stomach in Downtown Albuquerque in 2017 — a prosecution that was dismissed without prejudice after admitted mistakes by the District Attorney’s Office. Three weeks later, Bashir was accused of firing an assault-style rifle from a vehicle.

The DA filed new charges and sought pretrial detention. Despite two alleged shooting incidents in a short time, the judge in the case denied the request to detain him and released Bashir on his own recognizance. That was just weeks before the Weller murder.

The proposed rebuttable presumption advocated by the governor and others, in which defense lawyers would have had to show the court why it was safe to release Bashir, could very well have saved Jackson Weller’s life. And Bashir might not be facing more than 30 years in prison.

Defense lawyers cite statistics that show a relatively small percentage of offenders commit crimes while on pretrial release and that cases like Bashir’s (and there are others involving serious felonies) are outliers.

That’s not much consolation if someone you love is dead. And it’s not surprising the governor and others have been pushing for the change. They are just as shocked by the headlines as the rest of us. And why not target the “outliers” — as with Bashir, those who actually use a firearm, for starters?

There are also concerns rebuttable presumption will swamp courts with new cases. But detention can only happen in state court if the prosecution requests it, and our crime level means prosecutors with finite resources have to choose wisely.

Ditto for the concern defendants will be automatically locked up for, say, possessing a firearm. Nondangerous defendants’ lives should not be upended by being incarcerated for months — or years — while awaiting trial. The key here will be narrow wording that targets dangerous actions and true threats.

As for these horrific crimes being a kind of a oneoff situation, the governor gets it right when she says through a spokesman that 5% of felony defendants arrested for a violent crime while on release is “not a marginal figure” and those crimes “can still be utterly devastating to a family or a community.”

According to a survey in October by Journal pollster Brian Sanderoff of Research and Polling, the public is on board with changing the system — in a big way.

More than 77% of likely city voters favor the change — including support from 85% of self-described moderates. A sizeable majority of voters regardless of age, ethnicity and political leanings supported bolstering the pretrial detention laws. Only 11% opposed a change in what Sanderoff described as widespread support rarely seen for public policy questions.

The verdict from key policymakers and the public is in. Now, it’s up to lawmakers to carefully craft a change that honors the bedrock principle of innocent until proven guilty but makes our streets and communities safer while cases make their way through the courts.