Clearer guidelines needed for pre-trial detention to work

The bail reform constitutional amendment approved overwhelmingly by voters in 2016 had two primary goals. One was to prevent people accused of minor crimes from languishing in jail simply because they couldn’t post a bond — it was not fair or cost effective to have someone accused of a nonviolent offense jailed pending trial for lack of a couple hundred bucks.

The other — and let’s face it, the one that resonated with crime-weary voters — allowed judges to keep defendants in jail without bond if they posed a threat to community safety.

The first, elimination of “money for freedom” for minor offenders, has generated little controversy while significantly lowering the population at the Metropolitian Detention Center. It was a significant improvement to the criminal justice system.

But when it comes to controversy, the same can’t be said for the second, the dangerous defendant detention piece. While far from being a failure, its application has been riddled with inconsistencies and prompted District Attorney Raúl Torrez to push for a new constitutional provision that would establish a REBUTTABLE presumption for detention in certain cases. (For non-lawyers that means if you’re charged with shooting someone it’s assumed you’re dangerous unless shown otherwise.)

It’s common sense and far from shocking in terms of jurisprudence. The federal courts already operate with that kind of system.

A recent Journal story by reporter Katy Barnitz found that between June of 2017 and April of 2019, prosecutors in Bernalillo County sought pretrial detention in 2,048 cases. Judges ordered the defendants held in 945 of those, or 46%, while refusing to do so in 1,103, or 54%. Those defendants went back into the community with conditions of release, including Darian Bashir, accused in the shooting death of University of New Mexico baseball player Jackson Weller in Nob Hill. Bashir was out on conditions of release in another shooting case in which he is alleged to have gotten into a gunfight with occupants of another vehicle.

While the new law gives judges the ability to order pretrial detention, it also says the DA must prove that “no release conditions will reasonably protect the safety of the community.” That’s a tall order tilted too far against public safety — even though the Supreme Court in several opinions has given judges wide latitude in what they can consider when deciding whether to hold a defendant.

It’s not as though the District Attorney’s Office is seeking pretrial detention for every felony case filed by Albuquerque Police and BCSO. Each morning at 6:30 a group of paralegals and lawyers gathers in the DA’s Office to pore over the latest felony arrests. To ensure a defendant remains in custody, the motions are filed by 1:30 that afternoon when Metropolitan Court holds felony first appearances.

Under office policy, detention may be sought if one of the following criteria is met:

■ The defendant is facing one of 14 offenses, ranging from murder to shooting from a vehicle.

■ The defendant who is facing a felony charge “at the time of the crime or arrest had a firearm immediately accessible.”

■ The defendant has a history of multiple arrests or convictions that include a violent felony.

In the past year, the DA has sought preventive detention for 73% of the defendants who fell into one of these categories. So they don’t file detention requests willy-nilly.

Adding to the pretrial detention confusion, a risk assessment tool available to the courts — but not to the DA — uses different criteria and sorts defendants into six color-coded categories aiming to predict whether a defendant will behave and show back up to court. In many cases, the DA seeks to hold people the assessment tool finds are low risk — and vice versa. The assessment tool, by the way, does not take into account firearm accessibility.

Judge Cristina Jaramillo says her job is to craft the best ruling she can with the information presented. “No crystal ball, no predictive abilities,” she said. “You just make a decision.” She also points out judges see lots of red category cases on the assessment tool where the state hasn’t requested detention and points out that judges can’t impose pretrial detention unless the DA asks for it.

A proposal by Torrez would allow the court to bring its own detention motions.

Taking away someone’s liberty prior to conviction is a serious matter. So is releasing a dangerous defendant into the community. It’s time to make an already improved system better by allowing lawmakers and voters to provide guidelines in the form of rebuttable presumptions that balance the scales of justice while honoring judicial discretion.