COMMENTARY: This year, the Legislature unanimously agreed to place on our general election ballot one of the most significant justice reforms in our state’s history.
The question we will vote on is whether to amend antiquated bail provisions of the New Mexico Constitution in order “to protect community safety by granting courts new authority to deny release on bail pending trial for dangerous defendants in felony cases while retaining the right to pretrial release for non-dangerous defendants who do not pose a flight risk.”
Courtesy photo
Charles W. Daniels
Currently, the Constitution guarantees the right to get out of jail before trial for virtually all defendants, no matter how dangerous, if they can get their hands on enough money to post bond or if they can make payment arrangements with a bail bondsman.
But as we have seen all too often, the ability of a dangerous defendant to post a bail bond does nothing to protect victims, witnesses, police officers, or anyone else from injury or death. Under existing law, neither the released defendant nor a bondsman can lose a penny if the defendant commits new crimes, no matter how violent, while out on bond. And a dangerous defendant will again be entitled to get out of jail simply by posting a new bond on the new crimes.
The old money-for-freedom guarantee in our 1912 Constitution, which was copied from a 1682 Pennsylvania law, 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.
In addition to the unfair impact on non-dangerous defendants and their families, this imposes enormous costs on taxpayers who must pay for housing, guarding, feeding, and medicating people who do not need to be locked up before their trials.
If our judges enforce the Constitution as it is now written, they must permit release on bail for defendants who predictably will prey on others – and incur the wrath of those who do not understand that judges must honor the law even when they personally believe the law should be changed. If judges were to misuse bond-setting to try to ensure detention instead of to ensure return to court after release, they would violate both the rights of the defendant and their own judicial oaths to uphold the law as it is written, all without the procedural safeguards that should be required for outright denial of pretrial release.
The proposed constitutional amendment would give New Mexico judges new authority to deny pretrial release altogether if the evidence shows that detention of an accused felon is necessary to protect the safety of any other person or the community. Judges in federal courts and a number of other states have already been granted similar detention authority, and the United States Supreme Court has held that the United States Constitution, unlike New Mexico’s, permits pretrial detention for proven dangerousness.
Recently, the Legislature and voters of New Jersey amended their own Constitution to give their judges detention authority, and the national conference of all state court chief justices has voted to support the reforms in our proposed amendment.
By replacing money-based-release with evidence-based-release, the amendment would also protect the presumption of innocence for defendants who do not present a real risk to the public. Defendants who are neither a danger nor a flight risk would not be held in jail until trial simply because they lack the financial resources to post a particular bond. Any monetary bond would have to be set at or adjusted to a level within a non-dangerous defendant’s means.
This guarantee is already a part of federal law and the laws of many states, and federal courts have squarely held that bond schedules denying pretrial release simply for lack of financial resources violate the federal Constitution.
A broad-based group of government and community interests have joined the House, the Senate, the governor, and the Supreme Court in supporting this sensible amendment. It is a reform beyond partisan politics. While our court rarely takes a stand on proposed constitutional or statutory changes, we do have a responsibility to speak out on needed improvements to laws governing our justice system.
Because we recognize that amending the antiquated bail language in our current Constitution will enable us to protect our communities from dangerous defendants while preserving the right to pretrial liberty for non-dangerous defendants, we urge our fellow citizens to give our state’s judges the lawful authority provided in the constitutional amendment on the November ballot.
Charles W. Daniels is the New Mexico Supreme Court’s chief justice.