COMMENTARY: There has been much commentary recently supporting the bail amendment. But there has not been as much commentary regarding what will happen once it passes.
Courtesy photo
Johnny Osborn
With it seemingly likely that this measure will pass, it might be wise to educate the public as to what to expect after its passage.
First, let’s start out with understanding why bail reform is necessary. Nationwide, 60 percent of jail inmates are there simply because they are too poor to afford bail, not because they are dangerous. Nearly 50 years ago, Attorney General Robert F. Kennedy once famously said, “Only one factor determines whether a defendant stays in jail before he comes to trial. That factor is not guilt or innocence. It is not the nature of the crime. It is not the character of the defendant. That factor is, simply, money.”
This is not fair or just. And it is precisely because of Attorney General Robert Kennedy that the federal system long ago abolished cash bail.
“In our society liberty is the norm, and detention prior to trial or without trial is the carefully limited exception.” – Chief Justice Rehnquist, United States v. Salerno, 481 U.S. 739 (1986)
Throughout the states, advocates on all sides are clamoring for bail reform. A panel in Arizona has recently recommended abolishing the bail system. In 2014, New Jersey recently amended its constitution, effectively abolishing money bail. Other states are attempting to transition from bail to ensure the defendant’s presence at future hearings to a risk-based assessment system. Even jurisdictions like Harris County, Texas, and California – both notorious for unjustly harsh criminal justice systems – are beginning the discussion of bail reform.
With bail reform seemingly all the rage, New Mexico wants a piece of the action. To satiate New Mexicans’ hunger for reform, Constitutional Amendment 1 provides the needed relief. Everyone from law enforcement to the League of Women’s Voters has endorsed the measure. Chief Justice Charles Daniels recently wrote that bail reform is “one of the most significant justice reforms in our state’s history.” And though initially opposed to the amendment, even the bail industry now supports the amendment.
What gives? Why does New Mexico need the reform? And with it seemingly having very strong support, what will it do to the system once it passes?
Why does New Mexico need bail reform?
It is without question that something needs to change with the current practice. Pretrial incarceration not only costs the counties and state a lot of money, but it costs the citizenry and the defendant the inability to begin a rehabilitative process. There are innumerable collateral consequences to the defendants, which usually disparately affect the poor. Those who are incarcerated pretrial – even for relatively short time periods – are more likely to be to sentenced to more prison. Pretrial incarceration also brings extreme adverse mental health consequences. The list goes on and on.
LEAST RESTRICTIVE MEANS: Being held in jail solely because one is unable to post bond – and not because that person is dangerous – was the sole rationale behind the Brown opinion. It was determined by the Supreme Court, rightly so, that Mr. Brown, a developmentally disabled individual who committed a crime in the heat of passion, was entitled to a bail that he could afford, or to be released. Therefore, he should have been released upon the least restrictive means — which meant, for Mr. Brown, pretrial services. This principle, though this case is an anomaly as he more than likely would’ve been denied bail under the new amendment, will now be enshrined in the N.M. Constitution.
NO MORE GET-OUT-OF-JAIL-FREE CARD: Under the current system, if bail is granted and the defendant has the means to post it, the defendant shall be released, no matter how dangerous. It is fundamentally unfair that dangerous folks are able to post bond and be released when non-dangerous defendants are held because of their poverty. As Justice Daniels puts it, “old money-for-freedom guarantee in our 1912 Constitution…not only endangers our communities, it results in packing our jails with low-risk defendants who pose no real threat to community safety but who do not have enough money to pay whatever price tag is set on their constitutional right to be presumed innocent until proven guilty.”
Needless to say, bail reform is necessary. As a former state prosecutor and now defense attorney, I do not disagree. Criminal justice reform is necessary in many aspects – not just bail. So what does the amendment do and what does it not do?
What it does do
GRANTS COURTS NEW AUTHORITY TO DENY BAIL FOR ANY FELONY: What once was a discussion about non-dangerous defendants being detained unfairly, the discussion now surrounds the ability for the courts to have the power be able to put more folks in pretrial detention based on dangerousness. To be fair, there is a due-process requirement before a court may deny bail:
“Bail may be denied by a court of record pending trial for a defendant charged with a felony if the prosecuting authority requests a hearing and proves by clear and convincing evidence that no release conditions will reasonably protect the safety of any other person or the community. An appeal from an order denying bail shall be given preference over all other matters.”
Before the court of record can deny bail, it must hold a detention hearing, at which point the state must prove, by a clear and convincing standard, that the defendant is dangerous. Only a hearing – where evidence is taken – will ensure both the defendant’s rights and the community’s safety is protected. With the good portion of defendants being represented by public defenders or by attorneys on the public defender contract, it makes one wonder if attorneys – from both sides – are ready for what is in store. Hopefully the public defenders in Hobbs will be able to afford to attend bail hearings.
So what is a clear and convincing standard in this context? At this point, nobody really knows. Does it mean that someone charged with a low-level felony – like a possession of a controlled substance – can be denied bail if it can be proven that the person has engaged in extra-judicial conduct for which he is not charged? Only trial and error will answer. And case law – which means appeals – will ultimately determine the answer. This means a lot of folks are going to sit in custody after a court denies bail until the courts figure out what is defined as “dangerous.”
REINFORCES PRETRIAL RELEASE FOR NON-DANGEROUS DEFENDANTS: This amendment will hopefully reinforce the notion that non-dangerous defendants should be entitled to the release on the least-restrictive means. This was, after all, the whole reason Brown came to pass:
“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.”
But what makes us think the judges will do anything differently than pre-Brown? If courts were routinely effectively denying bail by setting bonds too high, what makes us think those same courts will act any differently? Why would a court that was not concerned with poor defendant’s rights being released care any more, especially now that this Constitution grants the courts the power to deny bail? Only time will tell whether the courts abide the constitution.
ESTABLISHES QUICK BAIL HEARINGS AND APPEALS:
“An appeal from an order denying bail shall be given preference over all other matters….
“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. The court shall rule on the motion in an expedited manner.”
First, the ABA recommends that an initial detention hearing be completed within three days. Studies from the Arnold Foundation show that being incarcerated pretrial even three days results in a greater likelihood of missing court and offending again. That said, the court rules of procedure will most likely require a detention hearing to be done within two days of initial arrest. Perhaps it will be done simultaneously to felony first appearances in Metropolitan courts, but the rest of the state may undergo some change. That means detention hearings on Sundays if the dangerous defendants are arrested on Fridays.
And if a court of record denies bail, an appeal to the Court of Appeals will be given preference over all other matters. One must question whether an appeal from a district court order setting bail too high would be given preference over all other matters, too.
But what happens when a court of non-record sets bail exorbitantly high? An appeal or writ to district court? From the language, it would seem that if an appeal/writ is required due to a high bail from a court of non-record, the court of appeal shall “shall rule on the motion in an expedited manner.” One would assume that the the court rules of procedure will require an appellate district bail hearing within 48 hours of the setting of the exorbitantly high bail from the court of non-record. That means that if a magistrate judge imposes an exorbitant bail on a Friday, a hearing should in theory take place on a Sunday.
All of this means more judicial resources, more prosecutorial resources, and more defense resources. With the criminal justice finances how they are, one must wonder what financial impact this amendment will have at every level of the courts.
OUTSOURCES PRETRIAL DANGEROUS DECISION MAKING TO THIRD PARTY: In order to deny bail, a court of record must find the defendant to be dangerous. To assist in answering the question of dangerousness for the trial courts, New Mexico will be allowing a third-party proprietary algorithm – called a Risk Assessment Instrument (RAI) – to determine who should be released. While RAIs are becoming more commonplace, algorithms have recently been criticized for being biased against certain races and classes of people.
In the Second Judicial District in Albuquerque, the pilot program will be run by the John and Laura Arnold Foundation, a private non-profit organization. This RAI, or something similar, should be rolled out statewide within a few years. And while the majority of the jurisdictions that have used the Arnold Foundation’s RAI have seen lower jail populations, the majority of those states the discussion has centered solely around releasing poor folks, not housing dangerous folks.
But let’s be frank — a “scientific” algorithm is only as unbiased as the data going into it. We believe in science and want to believe that an algorithm is more objective than its creator. But that’s just not the case. Big data has been shown to contain a lot of implicit bias, especially for minorities. In one study, Harvard professor Latanya Sweeney found that Google AdSense ads containing the word “arrest” were shown next to more than 80 percent of “black” baby name searches but fewer than 30 percent of “white” baby name searches.
Implicit bias is no different in the criminal justice system. The numbers show that blacks and Latinos are more likely to be stopped by the police and have arrest records than whites. Minorities and the poor are nearly three times more likely to have criminal records due to the War on Drugs even though whites are more likely to actually do the drugs. So it goes without saying that the poor and minorities are more likely to be more adversely affected by an algorithm when the data that goes into it is from a system that is already biased. As a minority-majority state, we must always be cognizant of the effects of policy on particular populations, and we must strive to prevent discrimination.
CREATES LOTS OF DATA: A lot of data on very vulnerable populations will be generated. Little has been discussed as to what procedural safeguards are in the system with regards to the big data that is being generated by the RAI. Companies like Facebook and Google make millions with the data they have amassed. They mine it. It has lots of value. Those companies embed software in order to track your internet usage so they can target you. Here, the Arnold Foundation regularly receives the date to “re-validate” the ‘scientific’ software. We give it to them. For free.
Other than re-validate their algorithm, what can and will the Arnold Foundation do with the data is amasses? Will we, as a state, maintain the data? Or will the data permanently return to the Arnold Foundation? As far as I am aware, this has not been asked or answered. Whatever happens with it, it is very difficult to actually strip out substantive identifiers. Heaven forbid a Russian hack. If there are protections in place, there has been no public discussion about them.
ALLOWS NO-BOND HOLDS FOR IMMIGRANTS FOR ANY FELONY:
“Bail may be denied by a court of record pending trial for a defendant charged with a felony if the prosecuting authority requests a hearing and proves by clear and convincing evidence that no release conditions will reasonably protect the safety of any other person or the community.”
If no conditions will reasonably protect the safety of the community, the court may deny bail. In other words, if someone is a flight risk, a court may deny bail. It stands to reason that – like the federal system – if a defendant is an immigrant, the court may very well determine that the defendant is a flight risk and order a no-bond hold. This is not an outlandish assumption under the amendment. And again, this can be done for any felony, not just a violent felony.
What it does not do
DOES NOT ABOLISH BAIL: The primary goal for every other jurisdiction that has implemented bail reform is the abolition of the bail industry. The federal government abolished bail in 1966. Four states – Illinois, Kentucky, Oregon and Wisconsin – and Washington, D.C., have abolished cash bail. If that were the goal of this amendment, it fails:
“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.”
As evidenced by the language above, this amendment ultimately does not do away with bonds or the bonding institution. Instead it creates a hybrid approach, where bail still remains and courts of both record, and especially non-record, will still set bonds too high in defiance of rulings of the Supreme Court. Why not be like the other states and the federal system that outright eliminated bail?
DOES NOT DEFINE ‘DANGEROUSNESS:’ Importantly, the amendment does not mandate that a defendant be charged with a dangerous offense for a court to deny bail. Indeed, the language says that a court of record may deny bail for any felony if the person is deemed dangerous by the judge.
“Bail may be denied by a court of record pending trial for a defendant charged with a felony if the prosecuting authority requests a hearing and proves by clear and convincing evidence that no release conditions will reasonably protect the safety of any other person or the community.”
For instance, one would assume that most, if not all, first-degree murder defendants will now be denied bail – even though that did not occur in Brown. But what about second degree murder? How about rape? Yes, probably. Child abuse resulting in death? You bet. Child abuse not resulting in death? Possibly. Driving while intoxicated for the fourth offense? Yes, most definitely – especially in this state. Residential burglary? Probably. You get the idea.
But what about residential burglary when nobody was home? Or what about breaking into 15 cars over three months to support a drug habit? What about white-collar defendants? Or selling $40 worth of a schedule 1 drug (second degree felony) where there was no firearm used? Under the amendment, a court will arguably be able to deny bail, even for these offenses, if a prosecuting attorney convinces a court of record that a defendant is a danger to the community or a flight risk.
In the federal system, due to the Bail Reform Act of 1984, if someone is charged with a certain crime, there is a presumption of detention based on dangerousness or flight risk. From 1995 to 2010, the percentage of federal defendants who were detained pretrial increased from 59 percent to 76 percent. After all, if the courts have effectively denied bail in disregard in the constitution and Brown, what makes one think that by giving them the authority to deny bail will ultimately result in them fewer pretrial detainees? Rules.
FURTHERS US-VS.-THEM MENTALITY: Under this amendment, a person charged with any felony, to include a non-violent offense, can still be denied bail if there is clear and convincing evidence that they are nonetheless dangerous. This will mean detention hearings, which means evidence taken. What kind of evidence may be allowed? Only the rule-makers ultimately know, but there are already some vying for the opportunity to be able to advocate for pretrial detention for low-level criminal offenders.
The City of Albuquerque recently released a study showing that fewer pretrial detainees results in higher property crime. As a result of that study, Mayor Berry has stated that he would like to send teams into court rooms to advocate for pretrial detention for repeat defendants. But one must wonder if they even have standing under Article 2, Section 24 of the New Mexico Constitution or the Victims of Crime Act to even be heard.
PRETRIAL COSTS ARE NOT COMPLETELY ELIMINATED: Last, but most certainly not the least, if bail reform does ultimately result in fewer in pretrial custody, that cost is not completely eliminated. Rather, the costs will be shifted from the county (jail) to the courts (pretrial services).
As it is planned, more defendants will be released pending trial. But even if a defendant is not dangerous enough to be denied bail, the courts still have a vested interest in ensuring that defendant appears at court. If they have a drug or alcohol addiction, which a good portion of defendants do, the courts will want to ensure that the defendant is clean from those substances. Which means that more defendants will be placed on pretrial services. Thus, while the jail’s budgets would be expected to shrink, the budget for pretrial services should balloon handsomely under the amendment.
In New Jersey, judges are saying that the reform will take “an extraordinary amount of resources,” including the hiring of additional court staff. Under New Jersey Judge Stuart Minkowitz’s analysis of the New Jersey amendment, which is extremely similar to New Mexico’s, the new bail hearings will require attorneys for both sides and will be held on weekends as well as weekdays. And with New Mexico courts already experiencing extreme budgetary shortfalls, one must hope that the state courts can afford it.
Where do we go from here?
In another article, I plan on writing about some of the potential pitfalls that I see with the amendment. Again, I think the amendment has good intentions and I hope it is determined to adequately balance the rights of the community with that of the defendant. But if we are going to amend our Constitution, let’s ensure that a conversation is had to ensure its success. Because as the great Ozzy Osbourne once so eloquently muttered, “good intentions pave the way to hell.”
Johnny Osborn, originally from Las Cruces, is a criminal defense attorney in Albuquerque. After graduating from the University of New Mexico School of Law in 2010, Johnny was a prosecutor for the State of New Mexico in Albuquerque, where he prosecuted all crimes to include violent first degree felonies. He enjoys camping and fly fishing in the Northern New Mexico mountains, has an organic garden (from which he won first place in the green bean division at the New Mexico State Fair in 2016), and enjoys hanging out with his dog, Milton. He is a member of the New Mexico State Bar Historical Committee, a member of Law Enforcement Against Prohibition, and is co-founder and vice president of Drug War Stories.