Bail reform was absolutely necessary — and New Mexicans understood that back in 2016 when voters overwhelmingly approved a constitutional amendment designed to overhaul how people charged with crimes were treated before trial.
Gone was the system of cash bail that could keep people without means behind bars no matter the severity of their crime. Instead, defendants could be released before trial so long as a judge decided they weren’t a danger to the broader community, among other factors.
Several years in, the bail-reform system is under sustained attack by those who believe it is spurring violent crime by repeat offenders.
Research — as opposed to anecdotes and emotion — shows the great majority of people released pending trial are not committing new crimes. In fact, between July 2017 and March 2020, 95% of individuals released pretrial in Bernalillo County, the state’s most populous, did not end up being arrested for a new violent crime. And of more than 10,000 felony cases studied, only 13 involved pretrial arrests for first-degree felonies, according to data from the University of New Mexico Institute for Social Research.
Still, statistics are cold comfort to victims in the cases where violence does occur after a suspect’s release.
The outcry from the public against the new system has been loud and sustained, and this legislative session, both the Democratic governor and state attorney general say they want reforms of the reform.
The phrase you will hear a lot over the next few weeks is “rebuttable presumption,” which shifts the burden of proof from prosecutors to defendants. Should such legislation become law, many defendants no longer would be presumed innocent under that standard. People accused of certain violent crimes, instead, would have to show they aren’t a danger to society to be released before a trial.
Potentially, hundreds of defendants would be kept in understaffed and increasingly crowded jails before proceeding to trial. These are places were inmates die for lack of medical treatment and live in unsanitary conditions. Governments would have to spend more money running the jails and, likely, to settle lawsuits because inmates will suffer when conditions are crowded and staffing is insufficient.
What’s more, additional research — this time by the University of New Mexico and the Santa Fe Institute — claims rebuttable presumption laws often are drafted too broadly, failing to prevent crime and targeting defendants who aren’t dangerous.
Yet there’s a reason people are up in arms over the new bail system.
Emotion plays a role, because rising crime causes fear. People want safer communities with the bad guys locked up behind bars, where they belong. The reality that the new system generally works collides headlong against the misguided perception that soft judges and a broken bail system combine to let criminals walk the streets.
The efficacy of the system is further called into question when a critical tool that helps determine which defendants stay locked up seems broken.
Take what took place last week in Albuquerque.
Solomon Pena, the man accused of politically motivated shootings at the homes of Democratic officeholders, had his first court appearance after being arrested. Pena was a failed Republican candidate for the state House of Representatives and despite losing badly, claims his election was stolen. He is out of touch with reality, clearly. In his case, the Public Safety Assessment — often called the Arnold Tool — recommended Pena be released pending his court case.
This, for a convicted felon. Remember, felons can’t have guns, which Pena did, police say. He is accused of not just a violent crime but one that is politically motivated.
Pena should not be allowed to roam free until his trial. And a tool that recommends his release is one that is suspect — it needs reworking. Fortunately, under the current system, a judge makes the final call, and Bernalillo Metropolitan Court Judge Jill Martinez ordered Pena remain in jail pending his detention hearing.
Whether he stays behind bars will be determined at a District Court hearing — with a judge, we trust, who also looks beyond an automated tool to the circumstances of the crime and the history of the defendant.
Upending the justice system to make defendants accused of violent crimes prove they aren’t a danger to society would be a step too far. Instead, the state Supreme Court — which sets all rules for court practices and procedures in the state — must intensify efforts to get rules for pretrial detention right.
Otherwise, the Legislature, attorney general and governor will rewrite the rulebook.
