A proposed state constitutional amendment designed to reform the bail industry passed with 87 percent voter approval on Tuesday Nov. 8.
For New Mexico Supreme Court Chief Justice Charles Daniels, the spokesperson and primary author of the amendment, the passage was a big win.
“I was gratified to see such support for the amendment,” he said. “I wasn’t surprised because the vast majority of people who have studied this (amendment), without a personal financial incentive in the dysfunction of the system, supported it.”
Now non-dangerous and non-flight risk defendants won’t wait in jail simply because they can’t afford bail, Daniels said. Courts will also have the power to hold defendants without bail as long as sufficient evidence has been provided to prove they are a flight risk or a danger to the community.
The State Canvassing Board — made up by the governor, secretary of state and Daniels — will review the election results next week.
After the board’s official approval, the amendment will be effective immediately as the ruling law in the state.
Initially proposed to the state Supreme Court by a bipartisan advisory committee in 2015, the amendment received unanimous support from the five state Supreme Court justices, all 33 state county commissioners and the majority vote in both the New Mexico House and Senate.
“There was such overwhelming support not only from voters, but from the major media and justice system — because it makes sense,” Daniels said.
He emphasized that the amendment will cause a shift from a money-based bail system to a risk-based system.
Despite the support, the bill received some pushback.
“The jail population will go up and more people will be in jail without bonds,” predicted Gerald Madrid, president of the New Mexico Bail Bond Association.
Madrid criticized the amendment because “judges will know” that holding defendants without bond will be an option, and, therefore, the jail population will increase.
In order for defendants to be held without bail the amendment states there must be “clear and convincing evidence” that detaining the defendant will protect individuals and the community, he said.
Madrid also expressed concerns that there may be an uptick in repeat offenders as indigent defendants will have the opportunity for pretrial release without bail.
“The real problem is that certain judges will continue to release criminals with only their word to return to appear in court,” Madrid said. “There’s no incentive to come back because there are no consequences.”
Madrid observed the low jail population — which have reached the lowest levels in the last decade — and the increasing crime rate as “having a definite correlation.”
Some analyses — one done by Peter Winograd, a retired UNM professor — found that the decreasing jail population and increasing crime population do have a direct correlation.
Supporters of the amendment have argued that the benefits of allowing non-dangerous, non-flight risk defendants pretrial release outweigh the costs.
The amendment will rely on judicial discretion to decide who is released and who is not.
The passage of the amendment puts New Mexico at the forefront of a nationwide effort to change the bail industry, as it joins Colorado, Illinois, Kentucky, New Jersey and Oregon as states having undergone efforts to reform the bail system.
But, despite the amendment’s passage, Daniels notes this is the first step in a long process of bail reform.
“Now we have to make it meaningful,” he said.
To do that, the New Mexico Supreme Court will create rules to provide guidance to courts, detention centers, prosecution attorneys and defense attorneys.
The rules are planned to be implemented at the start of 2017.
Daniels says it will be these rules, paired with lower court rulings, that will bring about true bail reform in the state.
“We have a longer process to retrain people involved to the new requirements, and oversee and ensure it’s done properly, lawfully, and effectively,” Daniels said.
Brendon Gray is a news reporter for the Daily Lobo. He can be reached at firstname.lastname@example.org or on Twitter @notgraybrendon.