State lawmakers are debating whether to ask voters to change the Constitution and give judges more flexibility in the state’s longstanding cash bail system.
Two proposals vie for their attention and if either wins the Legislature’s approval, it would go before voters in November.
One would allow judges to deny bail to defendants deemed dangerous but let those who are not go free before trial if financial hardship is all that’s keeping them behind bars. The other addresses dangerous defendants but not individuals too poor to afford bail.
Currently, the New Mexico Constitution allows nearly all criminal defendants the chance for freedom before trial, so long as they can afford it.
The debate in Santa Fe, which is long on ideas of fairness and public safety, but short on data about the magnitude of the problem, coincides with a larger, national discussion about the fairness of the cash bail system where those without enough money to post bail sometimes are kept behind bars for weeks, even months, as they await trial.
Community safety weighs on New Mexico policymakers as well after a year in which two Albuquerque-area police officers were fatally shot in the line of duty. The accused in both shootings are men with violent criminal histories.
State lawmakers are being asked to balance protecting the public with a basic tenet of the American criminal justice system: that all defendants, dangerous or not, are presumed innocent until proven guilty.
Supporters of Senate Joint Resolution 1, (SJR1), the product of months of study and vetting by a legislative committee, point to democratic principles — such as equal access to freedom regardless of ability to pay — and constitutional law, as well as public safety and rational argument.
The multi-million-dollar bail bonds industry favors House Joint Resolution 13, (HJR 13), filed late last week, which allows for the “preventative detention” of dangerous defendants but doesn’t address people who are poor and can’t afford bail.
In their opposition to SJR1, industry representatives emphasize their own potential loss of revenue and a possible weakening of public safety in which freeing those too poor to pay bail would lead to “lawlessness.”
The debate, for the most part, relies on philosophical arguments, ethical concepts and statistics from other states.
What’s missing are hard numbers from New Mexico’s courts and jails, numbers that would show how many people are currently waiting in jail for their day in court solely because they do not have money. Hard numbers also would tell policymakers how many people are likely to be affected if the Constitution is changed, and estimate new burdens on an already overtaxed justice system.
“Do we have all the specifics, all the data? No,” said Sen. Peter Wirth, a Democrat from Santa Fe and co-sponsor of SJR1. “I would say that about the vast majority of bills we deal with … Sometimes you don’t really know all the way what will happen until the law is on the books.”
But the lack of hard numbers doesn’t weaken the constitutional argument or invocation of ethical principles supporters use to advocate for changing the state Constitution, Wirth said.
“We have a system in which one person with resources is treated differently than a person without resources,” he said. “That is inherently unfair and, frankly, unconstitutional.”
Gerald Madrid, president of the Bail Bond Association of New Mexico, sees it differently.
The justice system should not strive for fairness, he said. Rather, if people cannot afford to post a cash bond — and their families won’t put up the money, either — so be it.
Madrid also suspects poverty would be used as an “excuse” for potentially dangerous people to get out of jail.
He conceded his contentions are based on anecdotes, experience and belief, not on hard numbers.
Better data, Madrid said, “would prove who’s right.”
“It’s hard for us to get that data,” he said. “There’s not just a button to press to get it all.”
A dearth of data
The Administrative Office of the Courts (AOC), an arm of the state Supreme Court, provided NMID a chart that showed limited information from 27 of New Mexico’s 28 county jails from July 1, 2014 to June 30, 2015. It showed about 100,000 jail bookings during that period.
Nineteen of the 27 counties differentiated between people who were awaiting trial and those who had been sentenced to jail time by a judge. In those 19 counties, only a third of people had been adjudicated and sentenced. But the data don’t answer whether the other two-thirds, each of whom is presumed innocent, would be eligible either for preventative detention or release because they cannot afford bonds.
Another glaring hole in the data: Bernalillo County’s massive Metropolitan Detention Center was among the jails that did not provide a breakdown of the people locked up there. MDC is one of the 40 largest county jails in the nation, and it accounted for more than a quarter of New Mexico’s bookings last year.
“The jails do not even all use the same software to manage their populations,” AOC Director Arthur Pepin said in an interview.
Court data “seem to indicate” that about 40 percent of all the criminal defendants who appear before New Mexico judges don’t post their bond, Pepin said. But that is “not a scientifically validated number” because the state’s case management system is not designed to collect information about bail bonds.
“If I had that data now, I could tell people: ‘I expect many of these people would be in the category of people who would be released under that provision of SJR1,” Pepin told NMID last week.
The only other state to reform its bail system through a constitutional amendment—similar to SJR1—was New Jersey. Lawmakers there approved a constitutional amendment in 2014, but before their push, state lawmakers commissioned a study that found nearly 39 percent of people being held in that state’s jails before trial were there only because they could not afford their bonds. Voters later passed the New Jersey amendment.
Pepin said he doesn’t expect the situation with cash bail to look much different in New Mexico. In fact, because of its pervasive poverty, New Mexico may be worse.
“But I don’t have PhDs running around studying it, because we’re poor, and we don’t have a whole lot of money,” he said.
Because of the lack of data, it is difficult to estimate the costs of pretrial supervision for those who would be released, but Pepin said it is sure to be less than the $72 a day it costs to jail someone.
A fiscal impact report prepared for SJR1 estimates a reduction in New Mexico’s jail populations by about 10 percent — roughly 700 people a year, saving taxpayers about $18 million. That figure is based on studies conducted in other states and does not account for the costs of pretrial supervision for defendants deemed dangerous.
The lack of data in New Mexico also obscures how many people might qualify as dangerous should either of the two proposed constitutional amendments pass.
Under the provisions of SJR1 and HJR 13 judges would decide in hearings whether a defendant is dangerous enough to hold without bond.
Pepin’s best estimates for how many people would qualify as dangerous vary from 85 to 5,000 a year, based on the number of people who post bonds of more than $10,000 and the number of violent felonies committed each year.
Because the estimates are so far apart, there is no way to predict the impact of a whole new set of hearings on New Mexico’s resource-starved, clogged courts.
Pepin anticipates questions about the possible impacts of the two-tiered constitutional change AOC favors — questions he won’t be able to answer with specificity. Better data would mean “less guess work, fewer qualifications,” he said.
But even before the legislative session began, SJR1 had gathered broad support from disparate organizations that often don’t agree. As state lawmakers vetted the idea during a series of meetings in 2015, a number of groups signed on, including the New Mexico Supreme Court, prosecutors and criminal defense lawyers, the American Civil Liberties Union and the Greater Albuquerque Chamber of Commerce.
‘Money for freedom’
Keeping dangerous people behind bars has received far more attention from the news media and from lawmakers than has the fairness of keeping low-income people locked up because they can’t pay a cash bond.
But a far greater number of people would be eligible for release before trial than would be deemed dangerous and ineligible for bond, state Supreme Court Justice Charles Daniels, New Mexico’s leading bail reform proponent, said in a recent interview with NMID.
Based on the experience of Washington, D.C.’s courts, where judges can deny bail to dangerous individuals, “we think the amendment would affect maybe 15 percent of people jailed who are dangerous, maybe less …,” Daniels said. “There would be a substantially greater number of people affected on the other end — people who are not dangerous, but who are in jail solely because they cannot afford to buy their way out.”
Daniels declined to discuss the data issue with NMID. But he spoke broadly about the systemic unfairness of what he calls the “money-for-freedom system” and the two substantial problems it has created.
It “doesn’t protect the community against dangerous defendants who can find a way to come up with money and post,” he said. “And two, it ends up jailing people before trials who are not dangerous, but simply because they don’t have the money to buy a bond. To fix it, you really need to address both problems.”
Daniels and Pepin pointed to a number of studies from around the country — New York, Washington, D.C., Kentucky, Colorado and New Jersey — they say shows the need for, and success of, bail reform. Some of the studies found that the bail system had a disproportionate impact on people of color. Others found that even a few days in jail — for people accused of nonviolent misdemeanors — had devastating impacts on their lives.
And two of the studies showed that people released from jail without the burden of a commercial bail bond were just as likely to return to court as those who had paid a bondsman to get out.
Daniels believes the “failures of the money-bond system” in New Mexico are similar to problems identified elsewhere, he said.
“Under our system of justice, you are presumed innocent,” Daniels said. “Yet, because of this money-for-freedom system … we ended up with something that only the U.S. and the Philippines in the civilized world use today.”
‘A matter of economics’
Jeff Clayton, national policy director for the American Bail Coalition, an industry group that opposes SJR1, points to a study that contradicts findings Pepin and other supporters emphasize in supporting their proposal: commercial bonds are more effective than other means in ensuring defendants’ return to court.
The report’s authors didn’t do a comprehensive study of New Mexico jails “so, this proposal is based on philosophy more than on information,” Clayton said.
Regardless, setting bail “is a decision that’s left to the judges now, and we should leave it like that,” he said.
Madrid, the Albuquerque-based bondsman and president of the state bail association, is harsher in his assessment. He disagrees with Daniels’ assertion that the justice system should be “fair.”
“Guess what? Life isn’t fair,” Madrid said. “It’s more a matter of economics, I believe. If someone goes to jail, we believe they should have the ability or the option to post a bond. If they can’t do that or don’t want to do that, then they can wait in jail till they’re seen by a judge.”
He described an argument for release from jail on financial grounds as an “excuse” and compared it to someone walking into a restaurant, claiming poverty and demanding a free meal. Further, Madrid said there is no requirement in SJR1 to verify that people can’t afford a bond.
“It sends the wrong message that everything is free, everybody’s entitled to it, and it just encourages lawlessness,” Madrid said. “These people committing crimes know that all they have to do is say they’re poor.”
Financial impacts on the industry would be swift and certain if voters approve SJR1, Madrid said. That forms the basis for part of his opposition.
“Well, of course we are” going to lose money, he said. “And that is true. But it’s not just the money. It’s the service we provide and all of the things that we do that we don’t get paid for … The bail bond industry of New Mexico pays millions of dollars in premium taxes annually, and all that will dry up and go away if they were to do away with us.”