Court closes pretrial detention loophole
Ruling fixes ‘gap’ in 2016 amendment aimed at possibly dangerous defendants
The state’s Supreme Court justices on Friday closed a “gap” in the process of determining pretrial detention for possibly dangerous defendants.
Pretrial detention without the option for bail is now legal in the state after voters overwhelmingly approved a constitutional amendment in 2016 allowing state District Court judges to 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.”
A prosecutor has to file a motion in a District Court in order for a judge to consider denying bail.
But in many jurisdictions in the state, defendants have access to bond early in the criminal proceedings, at the Metro or Magistrate court level, before a District Court judge can rule on a prosecutor’s motion. And that’s the gap: A defendant could get out of jail before a prosecutor’s motion is heard or receives a ruling.
Friday’s order from the justices forces jails to hold a defendant without bond or other release options from the moment they receive notice that a prosecutor has filed a motion to deny bail — even if a judge hasn’t ruled on the motion.
Chief Justice Charles Daniels said on Friday that the order addresses potential issues and was not necessarily in response to reported instances of a defendant bonding out of jail despite a prosecutor’s filing of a detention motion.
“There were still various courts around the state using fixed bail schedules and the detention centers were authorized to release on those schedules,” Daniels said. “It became obvious to us there was a gap in the process that we needed to deal with right away.”
For months, the justices have been considering a comprehensive set of instructions for judges, prosecutors and defense attorneys as they navigate the new amendment, which went into effect in December.
Justices decided to release just one instructive order in advance of the other instructions under consideration, which could be released for comment later this month, Daniel said.
Until the justices provide more specific guidance, as they began to do with Friday’s order, judges are individually left to figure out how to apply the amendment as it is more frequently being used by prosecutors.
Prosecutors in Bernalillo County have asked at least six times for a judge to deny bail to defendants, succeeding in all but one. On Friday, defense attorneys argued to overturn the pretrial detention for Lee Brandenburg, 41, who is accused of residential burglary, car jacking, aggravated assault, aggravated assault on a police officer and other charges.
District Attorney spokesman Michael Patrick said Friday that the appeal was overruled.
He said his office supports Friday’s order from the justices, saying it will ensure “that a defendant will remain in custody while a motion to detain has been filed or an order of detention has been entered by the District Court.”
“The District Attorney’s Office will aggressively pursue detention motions against all defendants whom the office determines represent a danger to the citizens of Bernalillo County,” Patrick said in an email.
Daniels said there should be a strict timeline for initial detention hearings and for appeals. Exactly what that timeline should be will be part of the comprehensive rules the justices are working on.
Until those are finalized, he said, judges should “deal with these expeditiously.” “Obviously there is going to be some good faith and some oversight, so that detention motions are not used to hold people for a long time . ... This is not something that is supposed to languish,” he said.