Critics: Pretrial detention changes risky

Public defender: Holding more defendants would worsen MDC conditions

In light of severe understaffing at the Metropolitan Detention Center — which advocates and corrections officers have said is “dangerously low” — public defenders are warning about the effects of proposed changes to pretrial detention that would keep more people behind bars.

“When you make the conditions of jail worse, you make the people that are coming through the jail worse,” said Chief Public Defender Bennett Baur. “So this makes it a worse place to be, particularly for people with behavioral health or substance abuse issues.”

Understaffing at MDC has led to inmates being held in lockdown for days at a time, heightening tensions and mental health issues. Corrections officers have said they are afraid of the possibility of a riot, and in October, deputies say, an inmate beat his cellmate to death before anyone was able to intervene.

MDC is not alone in understaffing. An analysis by New Mexico Counties found that jails around the state had an average of 23% staff vacancy rate in September, and that number is expected to have increased since then.

Meanwhile, pretrial detention has emerged as a major issue for this year’s legislative session, with Gov. Michelle Lujan Grisham, 2nd Judicial District Attorney Raúl Torrez, and Albuquerque officials and law enforcement advocating for people charged with certain crimes to be held until trial unless their defense attorney can convince the court otherwise.

MDC Chief Greg Richardson said in an interview a couple weeks ago that the proposed changes would put more of a strain on corrections officers.

“They’re going to come to MDC, so that increases our population here,” Richardson said. “So, with

that and the staffing and a lot of other things going on, it creates more work for us here and more responsibility for us here. … I don’t think when a lot of these things are happening that they’re looking at, you know, where are these individuals going? They just know they’re going to the detention center.”

Rep. Bill Rehm, R-Albuquerque, said he plans to introduce a bill to shift the burden of proof to the defense when a defendant is charged with a crime of violence, is currently out on conditions of release and commits another felony, or if they have a history of failing to appear for court hearings. The change would make it so that the defense would have to persuade the court to release a defendant in those cases, compared with current rules, under which a prosecutor has to persuade the court to hold a defendant.

As for what counts as a violent crime: “Any injury or any use of a deadly weapon, anything like that — it’s going to be real broad,” Rehm said.

The University of New Mexico’s Institute for Social Research has studied how many more people would be held in jail if the changes went into effect.

Using Rehm’s 2021 proposed legislation — which is similar to what he is proposing for the 2022 session but adds that a person should be detained if they were previously convicted of a felony or had violated any conditions of release — the institute found that from July 2017 to March 2020, between 797 and 1,969 more people would have been detained.

“Four-fifths of these defendants, between 656 and 1,596 of them, would not have been rearrested or charged with any new crime while awaiting trial,” the study found. “Detaining them is expensive, unnecessary and disrupts lives and families.”

Under the current system, an analysis by the Law Offices of the Public Defender found that of the cases in which defendants were being held in jail pending trial, 76 had not been indicted within a year and 485 — or 14.5 % of 3,340 resolved cases — ended without a state conviction, plea deal or transfer to federal court.

Keeping people in jail, regardless of whether they end up getting convicted, can have disastrous consequences on their lives, Baur said.

“If they were driving a car, it’s probably impounded, and they may not be able to get it out,” he said. “If they had a job, they may well be losing that job. If they were in sobriety or some kind of treatment program — while they’re in jail, they’re not in that. If they had a relationship, they might lose it. If they had an apartment that they were paying a lease on, they’re not paying the lease anymore.”

Baur said the proposals have to be analyzed to see whether they would actually keep the community safe or whether the ripple effects would end up creating “more crime and more damage to the people being held.”

“This isn’t ‘let’s just be safe by holding people in, and we’re not going to do any damage,’ ” Baur said. “We have to accept the fact that we are going to create damage by jailing people, especially under the worsening conditions that exist in jails under COVID.”

Torrez, who has been advocating for changes to pretrial detention for years, said in a statement, “The State has more than enough resources to strengthen pretrial detention to improve public safety and ensure that all stakeholders, including the Metropolitan Detention Center, are properly resourced and staffed.

“This year’s legislative session provides our leaders the opportunity to put public safety at the forefront of their agenda and we hope they take to funding comprehensive solutions, including expanded mental health and substance abuse treatment programming in county jails across the state,” Torrez said.

However, those in state government — including the Governor’s Office and Rep. Rehm — seemed to put the onus of staffing on local entities.

Nora Meyers Sackett, the governor’s spokeswoman, said that Lujan Grisham will pursue rebuttable presumption for the most egregious crimes and that her effort is not intended to criminalize substance abuse issues or other offenses or undermine the intent of bail reform.

She acknowledged that sufficient staffing at detention centers is important to ensure a safe environment but pointed out that counties oversee jails, not the state.

“But I will add that we continue to work closely with Albuquerque leadership, as well as municipal leadership from all around the state, on both legislative and budgetary initiatives intended to reduce crime overall, improving wellbeing, opportunity, and safety for New Mexicans while reducing the number of people in the state’s criminal justice system as a whole,” Sackett said in a statement.

Rehm pointed out that jails aren’t the only institutions struggling to hire and retain staffers now; police departments, hospitals and industries across the spectrum are also understaffed.

“Bernalillo County is going to have to take steps to address understaffing,” he said. “Whether it’s increase pay or what, I don’t know.”