Judges can now refuse to offer bail

New constitutional amendment aimed at dangerous defendants

State district court judges can now rule a defendant is too dangerous to even offer a chance of bail.

This option, made possible after approval of the state’s newest constitutional amendment, became available this week after the state Canvassing Board certified election results.

The amendment, which passed with 87 percent of votes, also ensures that defendants too poor to post even a small bail don’t get stuck in jail simply because they can’t pay.

The state Administrative Office of the Courts sent out a memo on Tuesday alerting judges, court staff, prosecutors and defense attorneys that the bail amendment is now in effect.

Prior to this amendment, the state Constitution required all judges to offer a reasonable bail to nearly every defendant, despite the nature of the crime or the risk the person posed to a community. Bail was only intended to be used to ensure the defendant returned to court for future hearings and was to be set by a judge per defendant, not an amount set for each alleged crime.

For serious crimes, some judges would set million-dollar bonds a defendant couldn’t meet, essentially keeping them in jail. That violated the old law. And some would set the same bail amount for each crime, despite an individual’s financial and risk circumstances.

Some of those defendants, low-risk — often

indigent or homeless — people charged with petty crimes or held on warrants for petty crimes, were given bail amounts they couldn’t afford. As of November 2015, a snapshot of the jail showed 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.

But now, judges at district courts around the state may outright deny bail to a felony defendant on “clear and convincing evidence that no release conditions will reasonably protect the safety of any other person or the community.” That means they don’t have to use an artificially high bail amount.

First, though, the prosecutor on the case must prove in a hearing that there is no safe way to release the person from jail.

The amendment also speeds up the timeline for a hearing for a defendant who is stuck in jail simply because he or she can not afford to post a bond. That, Bernalillo County officials hope, will help keep the jail from turning into a pauper’s jail.

The language in the amendment was approved by legislators in their regular 2016 session despite strong objection from the bail industry. Most money bonds are posted by bail bondsmen, who charge a defendant a fee equal to 10 percent of the bond.

The industry fought for changes to the original proposal for the amendment, winning a concession that granted judges more opportunity for setting a bond for low-risk indigent defendants.