On bail reform, let’s get a few things straight


COMMENTARY: Let’s get this straight first: What is causing the disastrous crime wave in New Mexico it is not the constitutional amendment adopted by the voters in November of 2016. Governor Martinez is wrong. Repealing the amendment will do nothing to change our problem.

What the constitutional amendment says is this:

“All persons shall, before conviction, be bailable by sufficient sureties, except for capital offenses when the proof is evident or the presumption great and in situations in which bail is specifically prohibited by this section. Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishment inflicted.

“… A person who is not detainable on grounds of dangerousness nor a flight risk in the absence of bond and is otherwise eligible for bail shall not be detained solely because of financial inability to post a money or property bond. A defendant who is neither a danger nor a flight risk and who has a financial inability to post a money or property bond may file a motion with the court requesting relief from the requirement to post bond (emphasis added). The court shall rule on the motion in an expedited manner.”

So, let’s get a second thing straight. What is causing our crime wave is the bail reform law that went into effect July 1, 2017.

Aubrey Blair Dunn

Courtesy photo

Aubrey Blair Dunn

This new major policy “reform” was not passed by the Legislature or adopted by the voters. It was legislated from the bench by Supreme Court justices unsatisfied that the amendment adopted by the voters did not go far enough.

Remember, the driving force behind the constitutional amendment was Justice Charles Daniels and his decision in State v. Brown. What was driving the change was a belief that bail was not fair to poor people.

On a basic policy level, I am sure we all had mothers or fathers that told us life is not fair. But, second, didn’t the constitutional amendment fix that by adding a clause that those without financial ability could file a motion and be released on conditions other than bail? Yes. In fact, that is exactly what the amendment says.

So, would anybody like to guess how many motions were filed regarding financial inability after July 1, 2017? I don’t know for sure, but I would bet you a $10,000 bond it is zero. Why? Because the new law in the form of pretrial rules from the Supreme Court rules, mimicking New Jersey’s law that came out of an ad hoc committee chaired by none other than professor Leo Romero, ignores the constitutional amendment language and releases virtually everyone without bail, installing a revolving door for habitual criminals.

Because if criminals don’t really care to follow the law in the first instance, why would we expect that they will follow the pretrial release conditions or show back up for trial at all? They have no skin in the game whatsoever now.

Finally, one last thing to get straight. Putting aside the major problem with giving a revolving door to habitual criminals, these new rules destroy the presumption of innocence. That presumption is important for justice, especially to those wrongfully accused.


Instead, under the new rules, almost every person accused is in danger of, or is experiencing, punishment until a trial where they may prove their innocence and once found innocent can never get their lost liberty back (or at least every person that follows the law enough to leave the ankle bracelet on). I believe treating people this way is decidedly un-American and is certainly not justice.

With those things straight: No, Governor Martinez, we don’t need to repeal the amendment to the Constitution. No, Professor Romero and Albuquerque Journal editorial board, we don’t need to give the Supreme Court’s legislative experiment more time to harm innocent New Mexicans.

And yes, New Mexico Legislature, please do your job of legislating and take this away from five Supreme Court justices who should not be legislating any policy reform, much less bail.

A. Blair Dunn is an Albuquerque attorney whose law firm, WARBA, LLP, focuses on civil rights and government (both federal and state) accountability and transparency, as well as natural resource- and agriculture-related litigation. Agree with his opinion? Disagree? We welcome your views. Learn about submitting your own commentary here.

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