{"id":202283,"date":"2016-10-29T10:19:55","date_gmt":"2016-10-29T16:19:55","guid":{"rendered":"http:\/\/nmpolitics.net\/index\/?p=202283"},"modified":"2016-10-31T08:26:46","modified_gmt":"2016-10-31T14:26:46","slug":"an-analysis-of-the-bail-reform-constitutional-amendment","status":"publish","type":"post","link":"https:\/\/nmpolitics.net\/index\/2016\/10\/an-analysis-of-the-bail-reform-constitutional-amendment\/","title":{"rendered":"An analysis of the bail-reform constitutional amendment"},"content":{"rendered":"

COMMENTARY:\u00a0<\/strong>There has been much commentary recently\u00a0supporting\u00a0the bail amendment<\/a>. But there has not been as much commentary regarding what will happen once it passes.<\/p>\n

\"Johnny

Courtesy photo<\/p>

Johnny Osborn<\/p><\/div>\n

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.<\/p>\n

First, let\u2019s 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<\/a>, \u201cOnly 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.\u201d<\/p>\n

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.<\/p>\n

\u201cIn our society liberty is the norm, and detention prior to trial or without trial is the carefully limited exception.\u201d – Chief Justice Rehnquist, United States v. Salerno, 481 U.S. 739 (1986)<\/p><\/blockquote>\n

Throughout the states, advocates on all sides are clamoring for bail reform. A panel in Arizona<\/a> has recently recommended abolishing the bail system. In 2014, New Jersey recently amended its\u00a0constitution, effectively abolishing\u00a0money bail. Other states are attempting to transition from bail to ensure the defendant\u2019s presence at future hearings to a risk-based assessment system. Even jurisdictions like\u00a0Harris County, Texas<\/a>, and California <\/a>\u2013 both notorious for unjustly harsh criminal justice systems\u00a0\u2013 are beginning the discussion of\u00a0bail reform.<\/p>\n

With bail reform seemingly all the rage, New Mexico wants a piece of the action.\u00a0To satiate\u00a0New Mexicans’ hunger for reform, Constitutional Amendment 1 provides the needed relief.\u00a0Everyone from law enforcement to the League of Women\u2019s Voters<\/a> has endorsed the measure. Chief Justice Charles Daniels recently wrote that bail reform is “one of the most significant justice reforms in our state\u2019s history.”<\/a>\u00a0 And though initially opposed to the amendment, even the bail industry now supports the amendment<\/a>.<\/p>\n

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?<\/p>\n

Why does New Mexico need bail reform?<\/h3>\n

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\u00a0disparately affect the poor. Those who are incarcerated pretrial \u2013 even for relatively short time periods \u2013 are more likely to be to sentenced to more prison. Pretrial incarceration also brings\u00a0extreme adverse mental health consequences. The list goes on and on.<\/p>\n

LEAST RESTRICTIVE MEANS:<\/strong>\u00a0Being held in jail solely because one is\u00a0unable to post bond \u2013 and not because that person is dangerous \u2013 was the sole rationale behind the Brown<\/em> opinion.\u00a0It 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\u2019ve been denied bail under the new amendment, will now be enshrined in the N.M. Constitution.<\/p>\n

NO MORE GET-OUT-OF-JAIL-FREE CARD:\u00a0<\/strong>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<\/a>, \u201cold money-for-freedom guarantee in our 1912 Constitution\u2026not 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.\u201d<\/p>\n

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 \u2013 not just bail. So what does the amendment do and what does it not do?<\/p>\n

What it does do<\/h3>\n

GRANTS COURTS NEW AUTHORITY TO DENY BAIL FOR ANY FELONY:\u00a0<\/strong>What once was a\u00a0discussion about non-dangerous defendants being detained unfairly, the discussion now surrounds the ability for the\u00a0courts to have the power\u00a0be 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:<\/p>\n

“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.”<\/p><\/blockquote>\n

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 \u2013 where evidence is taken \u2013 will ensure both the defendant\u2019s rights and the community\u2019s 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 \u2013 from both sides \u2013 are ready for what is in store. Hopefully the public defenders in Hobbs will be able to afford to attend bail hearings<\/a>.<\/p>\n

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 \u2013 like a possession of a controlled substance \u2013 can be denied bail if it can be proven that the person has engaged in extra-judicial conduct for which he is not charged<\/a>? Only trial and error will answer. And\u00a0case law \u2013 which means appeals \u2013 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 \u201cdangerous.\u201d<\/p>\n

REINFORCES\u00a0PRETRIAL RELEASE FOR NON-DANGEROUS DEFENDANTS:\u00a0<\/strong>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,\u00a0the whole reason Brown<\/em> came to pass:<\/p>\n

“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.”<\/p><\/blockquote>\n

But what makes us think the judges will do anything differently than pre-Brown<\/em>? If courts were routinely effectively denying bail by setting bonds too high, what makes us think\u00a0those same courts will act any differently? Why would a court that\u00a0was not concerned with poor defendant\u2019s 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\u00a0the constitution.<\/p>\n

ESTABLISHES QUICK BAIL HEARINGS AND APPEALS:<\/strong><\/p>\n

“An appeal from an order denying bail shall be given preference over all other matters\u2026.<\/p>\n

“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.”<\/p><\/blockquote>\n

First, the ABA recommends that an initial detention hearing be completed within three days<\/a>. Studies from the Arnold Foundation show that being incarcerated pretrial even three days\u00a0results in a greater likelihood of missing court and offending again<\/a>. That said,\u00a0the\u00a0court 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.<\/p>\n

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.<\/p>\n

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\u00a0if an appeal\/writ is required due to a high bail from a court of non-record, the court of appeal\u00a0shall \u201cshall rule on the motion in an expedited manner.\u201d One would assume that the the\u00a0court rules of procedure will require an appellate district bail hearing within 48 hours of the setting of the exorbitantly high\u00a0bail 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\u00a0take place on a Sunday.<\/p>\n

All of this means more judicial resources, more prosecutorial resources, and more defense resources.\u00a0With the criminal justice finances how they are, one must wonder what financial impact this amendment will have at every level of the courts.<\/p>\n

OUTSOURCES PRETRIAL DANGEROUS DECISION MAKING TO THIRD PARTY:\u00a0<\/strong>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 \u2013 called a Risk Assessment Instrument (RAI) \u2013 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<\/a>.<\/p>\n

In the Second Judicial District in Albuquerque, the pilot program will be run by the John and Laura Arnold Foundation<\/a>, a private non-profit organization. This RAI, or something similar,\u00a0should\u00a0be rolled out statewide within a few years. And\u00a0while the majority of the jurisdictions that have used the Arnold Foundation\u2019s RAI have seen lower jail populations, the majority of those states\u00a0the discussion has centered solely around releasing poor folks, not housing dangerous folks.<\/p>\n

But let\u2019s be frank — a \u201cscientific\u201d algorithm is only as unbiased\u00a0as the data going into it. We believe in science and want to believe that an\u00a0algorithm is more objective than its creator. But that\u2019s just not the case.\u00a0Big data has been shown to contain a lot of implicit bias, especially\u00a0for minorities. In one study<\/a>, Harvard professor Latanya Sweeney found that Google AdSense ads containing the word \u201carrest\u201d were shown next to more than 80 percent of \u201cblack\u201d baby name searches but fewer than 30 percent of \u201cwhite\u201d baby name searches.<\/p>\n

Implicit bias is no different in\u00a0the criminal justice system. The numbers show that blacks and Latinos are more likely to be stopped by the police<\/a>\u00a0and have arrest records than whites. Minorities and the poor are nearly three times\u00a0more likely to have criminal records due to the War on Drugs<\/a>\u00a0even though whites are more likely to actually do the drugs.\u00a0So it goes without saying that the poor and\u00a0minorities are more likely to be more adversely affected by an algorithm when the data that goes into it is from a system that\u00a0is already\u00a0biased. 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.<\/p>\n

CREATES LOTS OF DATA:\u00a0<\/strong>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\u00a0lots 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 \u201cre-validate\u201d the \u2018scientific\u2019 software. We give it to them. For free.<\/p>\n

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.\u00a0Whatever happens with it, it\u00a0is very difficult to actually strip out <\/a>substantive identifiers. Heaven forbid a Russian hack.\u00a0If there are protections in place, there has been no public discussion about them.<\/p>\n

ALLOWS NO-BOND HOLDS FOR IMMIGRANTS FOR ANY FELONY:<\/strong><\/p>\n

“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.”<\/p><\/blockquote>\n

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 \u2013 like the federal system \u2013 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\u00a0under the amendment. And again, this can be done for any felony, not just a violent felony.<\/p>\n

What it does not do<\/h3>\n

DOES NOT ABOLISH BAIL:\u00a0<\/strong>The primary goal for every other jurisdiction that has implemented bail\u00a0reform is the abolition of the bail industry. The federal government abolished bail in 1966. Four states\u00a0\u2013\u00a0Illinois, Kentucky, Oregon and Wisconsin \u2013\u00a0and Washington, D.C., have abolished cash bail.\u00a0If that were the goal of this amendment, it fails:<\/p>\n

“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.”<\/p><\/blockquote>\n

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.\u00a0Why not be like the other states and the federal system that outright eliminated bail?<\/p>\n

DOES NOT DEFINE ‘DANGEROUSNESS:’\u00a0<\/strong>Importantly, the amendment does not mandate that a defendant be charged with a dangerous offense for a\u00a0court to\u00a0deny 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.<\/p>\n

“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.”<\/p><\/blockquote>\n

For instance, one would assume that most, if not all, first-degree murder defendants will now be denied bail \u2013 even though that did not occur in Brown<\/em>. 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 \u2013 especially in this state. Residential burglary? Probably. You get the idea.<\/p>\n

But what about residential burglary when nobody was home? Or what about breaking into 15\u00a0cars over three months to support a drug habit?\u00a0What 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\u00a0deny 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.<\/p>\n

In the federal system<\/a>, due to the Bail Reform Act of 1984, if someone is charged with a certain crime<\/a>, 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<\/a>.\u00a0After all, if the courts have\u00a0effectively denied\u00a0bail in disregard in\u00a0the constitution and Brown<\/em><\/a>, what makes one think that by giving them the authority to deny bail will ultimately result in them fewer pretrial detainees? Rules.<\/p>\n

FURTHERS US-VS.-THEM MENTALITY:\u00a0<\/strong>Under this amendment, a person charged with any\u00a0felony, 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.<\/p>\n

The City of Albuquerque recently released a study showing that fewer pretrial detainees results in higher property crime<\/a>. As a result of that study, Mayor Berry has stated that he would like to\u00a0send teams into court rooms<\/a> to advocate for pretrial detention for repeat\u00a0defendants. 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<\/a>\u00a0to even be heard.<\/p>\n

PRETRIAL COSTS ARE NOT COMPLETELY ELIMINATED:\u00a0<\/strong>Last, but most certainly not the least, if bail reform does ultimately result in fewer in pretrial custody, that cost is not completely\u00a0eliminated. Rather, the costs will be\u00a0shifted from the county (jail) to the courts (pretrial services).<\/p>\n

As it is planned, more\u00a0defendants will be released pending trial. But even if a\u00a0defendant is not\u00a0dangerous enough to be denied bail, the courts\u00a0still 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\u00a0be placed on\u00a0pretrial services. Thus, while the jail\u2019s budgets would be expected to shrink, the budget for pretrial services should balloon handsomely under the amendment.<\/p>\n

In New Jersey, judges are saying that the reform\u00a0will take\u00a0\u201can extraordinary amount of resources,”<\/a>\u00a0including the hiring of additional court staff. Under New Jersey\u00a0Judge Stuart Minkowitz\u2019s analysis of the New Jersey amendment, which is extremely similar to New Mexico\u2019s, the new bail hearings will require attorneys for both sides and will be held on weekends as well as weekdays<\/a>.\u00a0And with New Mexico courts already experiencing extreme budgetary shortfalls<\/a>, one must hope that the state courts can afford it.<\/p>\n

Where do we go from here?<\/h3>\n

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\u00a0if we are going to amend our Constitution, let\u2019s ensure that a conversation is had to ensure its success. Because as the great Ozzy Osbourne once so eloquently muttered, \u201cgood intentions pave the way to hell.\u201d<\/p>\n

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\u00a02016), 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<\/a>.<\/em><\/p>\n","protected":false},"excerpt":{"rendered":"

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