On the ballot this election, New Mexicans will vote on a proposed constitutional amendment to reform the bail bond system. If the amendment passes, New Mexico will be on the frontline of a nationwide surge of bail reform.
The amendment will ensure non-dangerous and non-flight risk defendants won’t wait in jail simply because they can’t afford bail. The amendment also gives courts 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.
“If you analyze this logically the old system made no sense,” said Chief Supreme Court Justice Charles Daniels. “Why are we using our jail space to keep people who are no threat to us? House them, medicate them, feed them, guard them, clothe them? All at taxpayer expense.”
Daniels drafted the amendment and sent it to the legislature for approval.
“At the same time, we’re letting people out who were just clearly dangerous. It makes no sense at all to use money to make the distinction between people who are in and who are out (of jail),” he said.
Senator Peter Wirth, D-NM, carried the bill in the Senate.
“I think it’s an extremely important piece of legislation in keeping dangerous defendants off the streets and allowing non-dangerous defendants who are not a flight risk the ability to get out of jail,” he said.
Wirth graduated from the UNM Law School in 1990, and is currently a practicing attorney in Santa Fe.
After a revision, the bill received unanimous support from both houses, sending the amendment onto the ballot this election.
The movement for bail reform started in New Mexico with a state Supreme Court case decision that criticized the widespread use of cash bail when other less restrictive options for release were available.
The ruling prompted the formation of a bipartisan advisory of judges, prosecution and defense attorneys, and bail bondsmen to present alternatives to the state’s bail practices.
The committee suggested a state constitutional amendment be made.
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While the amendment received unanimous support from the five state Supreme Court justices, all 33 state county commissioners and the majority vote in both the state House and state Senate, initially there was some opposition.
“Our position was that (the drafted amendment) was too broad, too open to just say, ‘I’m indigent’ and get out of jail,” said Gerald Madrid, the president of the New Mexico Bail Bond Association and a member of the bail reform committee.
“We gave our word up front that we would support the bill without the indigent provision,” Madrid said. “Through negotiations there was a compromise.”
Instead of abandoning the pre-trial release provision, negotiations gave rise to the current language of the bill. Now, defendants who can’t afford bail may file a claim to be released prior to their trial.
Both prosecutor and defense attorneys agree bail should apply equally to the wealthiest and the poorest citizens.
“Bail conditions should apply the same way to the rich and the poor,” said Michael Fricke, a criminal prosecutor and deputy with the District Attorney’s Office. “Money shouldn’t prevent people from getting out of jail.”
Defense attorney Richard Moran agreed.
“Keeping innocent people in jail just because they can’t afford to get out of jail is unfair,” he said.
Moran also emphasized the amendment wouldn’t be providing defendants with a “get out of jail free card,” because they wouldn’t have been convicted of any crime at the time of their release.
Adding to the problem, some suggest keeping the poor in jail has a myriad of negative effects.
“Detained defendants are less able to put together effective legal defenses, and research suggests that defendants detained before trial tend to receive harsher sentences than otherwise similar defendants who were released pending trial,” said Aubrey Jackson, an assistant professor in UNM’s Sociology Department.
Jackson also noted pre-trial detention impacts more than just the defendant.
During their time in jail, defendants can’t work or fulfill family duties, she said, stressing that this adds to the burden on those detained pre-trial.
Fricke noted there may be an increase in hearings to handle the bail repeals. Further, Fricke predicts there will be more hearings to prove the dangerousness of a defendant, pending their exemption from bail.
However, Moran stressed how this amendment to keep dangerous defendants in jail without bail will increase community safety.
“From my perspective, as a member of the community, this is really a sound way of handling someone charged with a crime,” he said. “I think it’s a positive step forward.”
In a paper prepared for a judges’ conference in September, Daniels summarized why he has supported the amendment from the beginning.
“There is no greater advancement our courts and our society can make in the pursuit of justice in America than the clear path that lies before us toward reforming our antiquated, unprincipled and dangerous money bail system,” he said.
Brendon Gray is a news reporter for the Daily Lobo. He can be reached at news@dailylobo.com or on Twitter @notgraybrendon.
