‘Dangerous defendants’ targeted
Constitutional amendment allows judges to deny bail
Voters are being asked to approve an amendment to the state constitution to allow judges to hold defendants charged with serious crimes without bail before trial if they are found to be a threat to other people or to community safety. The Legislature unanimously agreed this year during the regular legislative session to send the amendment to voters. And the measure — which also provides that defendants should not be held in jail awaiting trial simply because they are broke — has wide political support, including that of Gov. Susana Martinez, the state Supreme Court with four Democratic justices and Albuquerque Mayor Richard J. Berry. Criminal defense lawyers are the most notable opponents. As a practical matter, the first target of the amendment would be “turnstile thugs” — offenders who are jailed, only to post bail and commit more crimes while awaiting trial. Proponents say the change is needed because the state constitution currently guarantees the right to get out of jail before trial to almost all defendants, no matter how dangerous, if they can post “reasonable” bail or pay a bondsman to post bail. Getting busted for another serious crime while out on bail doesn’t mean the first bail bond is
revoked — only that another is needed for the new criminal charges. And many bail bondsmen accept a low down payment and carry the “paper” on the rest — particularly if a family member can pledge property or other security in case the defendant skips town. Most defendants — with few exceptions, including in capital cases — are currently eligible for a “reasonable” bail, no matter the crime or criminal history. Supreme Court Chief Justice Charles W. Daniels wrote in the Journal earlier this month that the amendment would give judges “new authority to deny pretrial release altogether if the evidence shows that detention of an accused felon is necessary to protect the safety of any other person or the community.” State Sen. Peter Wirth, D-Santa Fe, who sponsored the amendment, said: “This proposed amendment fixes our broken bail system. By focusing on dangerous defendants, it will make us safer and save taxpayers money.” As Albuquerque has faced a surge in crime, Berry has spoken frequently in support of the amendment. “What we have now isn’t working. I don’t know that the amendment is perfect, but it will be better than what we have, so I am supporting its passage.” Berry has some reservations about the second part of the amendment. That part of the proposal says defendants who are found to be neither a danger nor a flight risk can’t be detained solely because they can’t post a money or property bond. County officials and defense lawyers pushed that provision, saying the release of defendants who pose no risk would help the county trim jail costs. Bernalillo County reported that, as of last Nov. 25, it had 57 jail inmates who had bail set at $100 or less, but couldn’t post it. Another 123 defendants were being held on bail of $101 to $500. The second part of the amendment is the result of a compromise reached by lawmakers, the state Supreme Court, the bail industry and others. Bail bondsman Gerald Madrid, who participated in the negotiations, said the bail bond industry supports the amendment and believes the changes would make the public safer. The New Mexico Defense Lawyers Association opposes the compromise amendment. “We were in favor of the original draft of this amendment, which had much stronger protection for the poor,” said Matt Coyte, head of the association. Most money bonds are posted by bail bondsmen, who charge a defendant a fee equal to 10 percent of the bail. The Journal reported at the time the amendment passed that the bail bond industry initially opposed the provision dealing with defendants who pose no risk, but agreed to support the proposed amendment after the provision was rewritten to make it possible for a judge to refuse a no-bail release to an indigent defendant if the defendant posed a flight risk. Also, under the compromise, an indigent defendant who is neither a danger nor a flight risk may be required to file a court motion requesting relief from a requirement to post money bail. Coyte said the amendment would place “an impossible” burden on the majority of people charged with crimes. The state Supreme Court is considering new rules for state and local courts to standardize how judges reach decisions on setting bail or structuring a pretrial release for defendants. Judges in the 2nd Judicial District have been working with experimental rules on pretrial release, partly to help lower the population of the Metropolitan Detention Center.