Can you put a price on freedom?
Judges do every day when they arraign criminal defendants and set bail. But critics say pegging a dollar figure to a suspect’s freedom is unfair and unsafe.
A gang member can bond out of jail with ease if they have a steady income from drug sales but a drug user with no criminal history but little money could wait for their day in court behind bars.
That can leave the poorest criminal defendants out of a job and separated from family members who may need their support, punishing them before being found guilty of anything, reform advocates argue.
Meanwhile, criminal defendants with a history can post bail if they can afford it.
Last week, a committee of lawyers, judges and legal experts New Mexico courts should have the power to order the most dangerous criminal suspects detained without bail.
While the proposal may seem “tough on crime,” some advocates for abolishing the practice of demanding money for a suspect’s freedom until their day in court see it as one step towards what they view as a fairer system — in which the threat a criminal defendant poses to society is the deciding factor in their release rather than whether they have the cash to post bail.
The state’s constitution currently guarantees everyone the right to bail unless they are charged with a capital offense such as murder and “the proof is evident or the presumption great,” though New Mexico abolished capital punishment in 2009. Courts can also deny bail for a period of 60 days for certain criminal defendants who have prior felony convictions.
“Because the New Mexico Constitution mandates that bail be set for all defendants subject to these limited exceptions, New Mexico judges lack the authority to detain many of the most dangerous, violent individuals,” UNM School of Law Professor Leo Romero wrote Aug. 14 to the New Mexico Supreme Court on behalf of its Ad Hoc Pretrial Release Committee, which was formed earlier this year to recommend reforms to the state’s laws regarding bail.
The only option is to impose an extremely high money bail, Romero wrote, but noted a New Mexico Supreme Court decision last year prohibits setting bail for the purpose of preventing a defendant’s release before trial.
“Intentionally setting bail so high as to be unattainable is simply a less honest method of unlawfully denying bail altogether,” the court ruled in State v. Brown.
“In light of these authorities and the challenges faced by New Mexico judges, a majority of the committee recommends that the Supreme Court should pursue a constitutional amendment that will permit New Mexico judges to detain defendants pending trial in cases where no type of pretrial release and/or conditions of pretrial release will reasonably assure the defendant’s appearance in court or the safety of any other person and the committee,” Romero wrote.
Currently, “it’s not their danger to you or I, but their ability to raise cash” that decides whether a criminal defendant remains in jail before trial, said Timothy J. Murray, director emeritus of the Pretrial Justice Institute.
“The most risky and dangerous defendant can secure their release if they have the means to do so,” he said.
Of 68 people in custody at the Taos County Adult Detention Center Tuesday (Aug. 19), for example, approximately one-fourth were awaiting trial on nonviolent charges.
Preventive detention is just one of several measures recommended by the Pretrial Justice Institute, which advocates for bail decision-making processes based on risk rather than a criminal defendant’s resources.
The institute also recommends pretrial risk assessments for defendants, pretrial supervision and monitoring, citing suspects for certain crimes rather than arresting them and ensuring criminal defendants are represented by an attorney during their first appearance in court as well as eliminating bond schedules which dictate based on the alleged crime how much a suspect needs to pay to get out of jail before seeing a judge.
The New Mexico Supreme Court Ad Hoc Pretrial Release Committee is expected to propose several such reforms by the end of the year.
Amending the New Mexico Constitution to allow for preventive detention will require the approval of voters, however.
The committee did not recommend specific language for such a ballot measure but asked the supreme court, Administrative Office of the Courts and legislature work together to draft a question for voters.
To be included in the 2016 general election, lawmakers will need to approve a constitutional ballot question by the end of their session in February.
New Mexico would join a growing number of states changing how judges set bail.
New Jersey voters overwhelmingly approved a ballot measure in 2014 amending their state constitution to allow for preventive detention. But unlike in New Mexico, where bail reform has been spurred by a court ruling, the question of preventive detention was put to voters after years of legislative effort.
The approval of preventive detention was tied to a series of other reforms, winning the proposal backing from civil liberties groups.
“We supported the preventive detention piece but only because it was part of a larger holistic bail reform,” said Roseanne Scotti of the Drug Policy Alliance.
New Jersey is now implementing risk assessments for criminal defendants, eliminating bond schedules and is creating a pretrial supervision unit responsible for monitoring suspects released from jail pending future court dates.
Scotti cautioned that states must ensure preventive detention comes with due process.
“You can’t have preventive detention just as a way of keeping people in jail for years,” she said, emphasizing assessment and speedy trials are made all the more important when judges have the authority to detain suspects without bond.
Bail bondsmen in New Mexico and across the country have been critical of such measures.
A local bail bondsman and former judge is skeptical, for example, that the state government could take on responsibility for monitoring criminal defendants released ahead of trial.
“Does the state have money to do it? Probably not,” said Erminio Martinez.
Consistency in bail across the state would be the most useful reform, he said.
Bond schedules vary from county to county, for example. A comparison of bond schedules across the state published last year by the UNM Institute for Social Research found a wide range of bonds imposed for similar charges across 22 jurisdictions. Taos County’s bond schedule is higher than most included in the study. Bond schedules may be dispensed with entirely, though, following the New Mexico Supreme Court’s decision in State v. Brown.
Martinez said he would also support releasing more criminal defendants on their own recognizance. But either way, the bondsman acknowledged changes are likely to come.