January 30, 2023

Pre-trial risk-assessment tool: crutch or crystal ball?

By Phaedra Haywood, The Santa Fe New Mexican

The Legislature’s debate over crime is beginning to take form, centering on two key issues: whether suspects accused of serious offenses  should be detained in jail as a matter of course, and whether a risk assessment process known as the Arnold Tool is a threat to public safety.

The chief justice of the state Supreme Court and the administrative head of the court system have defended the system as it stands.

But several bills in the Legislature, perhaps influenced by criticism by law enforcement and the public’s weariness of crime’s severity and constancy, are aimed at changing the pre-detention process.

Legislators heard presentations on the Arnold Tool late last week as several bills make their way toward key committees in the next several days.

The Public Safety Risk Assessment — named after its developer, John Arnold  —  has been in used in Bernalillo County’s Second Judicial District since 2017 and has expanded to five other judicial districts, including Santa Fe. 

Though used differently in other places, New Mexico’s version does not tell judges whether to release accused criminals from jail pending trial, Administrative Office of the Court Director Arthur Pepin told members of the state Senate Judiciary Committee during a presentation Friday. 

It considers nine factors — age, offense, prior felony convictions and prior failures to appear among them — to predict the likelihood a defendant would reoffend or fail to appear for court. The process generates a score and corresponding recommendation about what level of supervision would be most appropriate.  

Those who score low on the risk assessment — which uses a scale of 1 to 6, with 1 considered the lowest risk — would most likely do well with a minimal level of supervision. It may be appropriate for those who have a higher score to be more heavily supervised via an electronic monitor or regular drug testing, Pepin said. 

Pepin told lawmakers it’s a “misconception” the tool tells judges whether to let someone out.

“It does not recommend release or detain,” Pepin said. “It has nothing to do with detention.” 

Some of the confusion may be due to the way the Public Safety Assessment form is designed. The program contains the words “detain” in some areas and “ROR” — short for release on own recognizance —  in others. 

“It greatly misleads the public and the press,” said Pepin who said he reluctantly agreed to the language when the risk assessment program was still a pilot in 2017, calling it “the greatest mistake” he made in pre-trial detention policymaking.  He plans to have it redesigned. 

Public Defender Jonathan Ibarra told the committee Friday analysis shows the tool works, because people with low scores tend violate the terms of their release less often than defendants with high scores. 

Researchers from the University of New Mexico and the Santa Fe Institute have determined only a fraction of those released pre-trial — about 3% — commit new crimes. 

That hasn’t prevented the perception the policy promotes a “catch and release” system of repeat criminals rolling through the criminal justice system.

Friday’s presentation at the Capitol was convened in part to consider criticism from Albuquerque Police Department Chief Harold Medina after the Arnold Tool produced a score of 2 for Solomon Pena, a failed GOP candidate accused of orchestrating shootings at the homes of Democratic officials’ homes in recent months.

“How can we require judges to use this broken tool?” Medina said in a news release in the wake of the Pena case. “We need to fix this process so the public will have faith that we are keeping the community safe from dangerous criminals.”

Pena was not released from jail pending trial based on the score generated by the tool. He was kept in by a judge’s decision.

Criticism of the Arnold Tool is just part of a general uneasiness policymakers have expressed regarding the state’s bond system ever since a 2016 voter referendum eliminated money bond in most instances and paved the way for the creation of a system that allows judges to keep defendants in jail if prosecutors can show they are too dangerous to be released. 

The idea behind the reform, proponents say, was to bring the system more in line with the state and U.S. constitutions and address an inherent unfairness which kept poor people in jail because they couldn’t afford bail. Supreme Court Chief Justice C. Shannon Bacon defended the reforms in an interview last week, noting they allow a judge to make a decision on dangerousness — something they couldn’t do before.

Legislators weigh in

But lawmakers on both sides of the aisle and in both chambers of the Legislature are introducing bills aimed at changing the system. 

Rep. Dayan Hochman-Vigil, D-Albuquerque, has proposed legislation — House Bill 74 — that would require prosecutors who file motions seeking to detain defendants accused of violent crimes in districts which use risk assessment tools to include include a “violent flag” in the assessment, among other things.

House Joint Resolution 9 — sponsored by Republican Reps. Andrea Reeb of Clovis, Bill Rehm of Albuquerque and Stefani Lord of Sandia Park — proposes asking voters to authorize the Legislature to set conditions of release and expand the set of defendants who can be held without bond, among other things. 

Sen. Linda Lopez, D-Albuquerque, and Rep. Meredith A. Dixon, D-Albuquerque, have introduced a measure — House Bill 123 — which proposes a default that calls for keeping people accused of a list of serious crimes, including murder, in jail pending trial based on the presumption that the seriousness of the crime for which they are accused of makes them too dangerous for release. 

The default determination would be “subject to rebuttal by the defendant,” according to the bill. 

Critics of rebuttable presumptions have said such proposals shift the burden of proof from the state to the defendant — forcing people who under the law are considered innocent until proven guilty to prove they aren’t dangerous.

Sen. Gregg Schmedes, R-Sandia Park, has also introduced a measure — Senate Bill 174 — which proposes the courts default to a presumption of dangerousness in pre-trial detention matters for defendants accused of certain crimes.

It also proposes “prohibiting courts from relying on risk assessment tools” and says a court “shall not excuse” certain defendants from paying bond unless the person first proves they lack the financial means to do so. 

“A court shall exercise discretion in determining the eligibility of a defendant for pre-trial release,” the bill says. 

Judicial officials say that’s already happening.

Attorney General’s Office Special Counsel Adolfo Mendez said whether something is working hinges in part on the public’s perception. 

“In a very real sense it’s not working because we are losing the public’s trust,” said Mendez, whose boss, newly elected Attorney General Raúl Torrez, has been critical of pre-trial release standards and has said they need to be tweaked. 

Asked last week if bond reform had gotten a bad rap, Bacon said the measure was “misunderstood.” 

Asked after Friday’s discussion whether lawmakers have a clear enough understanding of the Arnold Tool and pre-trial detention to make sound policy decisions, Pepin replied:  “I know that they are very interested in being educated about it. I can’t tell you what they heard today but they sure did get a lot of information.”