State lawmakers are debating whether to ask voters to change the constitution and give judges more flexibility in New Mexico’s longstanding cash bail system.

As this year's short session winds to a close on Feb. 18, legislators at presstime were inching toward asking voters to approve a measure that would allow judges to deny bail to defendants deemed dangerous. It would prevent judges from detaining people who are not dangerous but who remain in jail only because they don't have money.

Currently, the New Mexico Constitution allows nearly all criminal defendants the chance for freedom before trial, so long as they can afford it.

The debate in Santa Fe—which is long on ideas of fairness and public safety, but short on data about the magnitude of the problem—coincides with a larger, national discussion about the fairness of the cash bail system, where those without enough money to post bail sometimes are kept behind bars for weeks, even months, as they await trial.

Community safety weighs on New Mexico policymakers as well, after a year in which two Albuquerque-area police officers were fatally shot in the line of duty. The accused in both shootings are men with violent criminal histories.

State lawmakers are being asked to balance protecting the public with a basic tenet of the American criminal justice system: that all defendants, dangerous or not, are presumed innocent until proven guilty.

Supporters of Senate Joint Resolution 1 (SJR1) say it's solid on improving equal access to freedom, regardless of ability to pay, as well as public safety and rational argument. It passed the Senate early this month, and House leaders say it has a good chance there, too.

The multimillion-dollar bail bonds industry is strongly opposed to that idea and backed a different bill, which would allow for the "preventative detention" of dangerous defendants but doesn't address people who are poor and can't afford bail.

What's missing from the debate are hard numbers from New Mexico's courts and jails about how many people are currently waiting in jail for their day in court solely because they do not have money. Hard numbers also would tell policymakers how many people are likely to be affected if the constitution is changed and estimate new burdens on an already overtaxed justice system.

"Do we have all the specifics, all the data? No," says Sen. Peter Wirth, a Democrat from Santa Fe and co-sponsor of SJR1. "I would say that about the vast majority of bills we deal with. … Sometimes you don't really know all the way what will happen until the law is on the books."

But the lack of information doesn't weaken the argument for changing the constitution, Wirth says.

"We have a system in which one person with resources is treated differently than a person without resources," he says. "That is inherently unfair and, frankly, unconstitutional."

Gerald Madrid, president of the Bail Bond Association of New Mexico, says he suspects poverty could be used as an "excuse" for potentially dangerous people to get out of jail, yet he conceded his contentions aren't based on facts any more than reformers'.

A dearth of data

The Administrative Office of the Courts, an arm of the state Supreme Court, gathered information from 27 of New Mexico's 28 county jails from July 1, 2014, to June 30, 2015, to try to understand the scope of the challenge. Its report shows about 100,000 jail bookings during that period.

Nineteen of the 27 counties differentiated between people who were awaiting trial and those who had been sentenced to jail time by a judge. In those 19 counties, only a third of the people had been adjudicated and sentenced. But the data don't answer whether the other two-thirds, would be eligible either for preventative detention or release because they cannot afford bonds.

Another glaring hole in the data: Bernalillo County's massive Metropolitan Detention Center, which accounts for more than a quarter of the state's bookings, was among the jails that did not provide a breakdown of the people locked up during that time period.

Arthur Pepin, director of the Administrative Office of the Courts, says in an interview that another source, court data, "seem to indicate" that about 40 percent of all the criminal defendants who appear before New Mexico judges don't post their bond. But that is "not a scientifically validated number," Pepin explains, because the state's case management system is not designed to collect information about bail bonds.

The only other state to reform its bail system through a constitutional amendment—similar to SJR1—was New Jersey, where state lawmakers commissioned a study that found nearly 39 percent of people being held in that state's jails before trial were there only because they could not afford their bonds. Voters later passed the New Jersey amendment.

Pepin says he doesn't expect the situation with cash bail to look much different in New Mexico. In fact, because of its pervasive poverty, New Mexico may be worse.

"But I don't have PhDs running around studying it, because we're poor, and we don't have a whole lot of money," he adds.

A fiscal impact report prepared for SJR1 estimates a reduction in New Mexico's jail populations by about 10 percent—roughly 700 people a year—saving taxpayers about $18 million. That figure is based on studies conducted in other states and does not account for the costs of pretrial supervision for defendants who are not deemed dangerous.

The lack of data in New Mexico also obscures how many people might qualify as dangerous under the proposals, which both would allow judges to make that call.

Pepin's best estimates for how many people would qualify as dangerous vary from 85 to 5,000 a year, based on the number of people who post bonds of more than $10,000 and the number of violent felonies committed each year.

But even before the legislative session began, SJR1 had broad support from organizations that often don't agree. As state lawmakers vetted the idea during a series of meetings in 2015, a number of groups signed on, including the New Mexico Supreme Court, prosecutors and criminal defense lawyers, the American Civil Liberties Union and the Greater Albuquerque Chamber of Commerce.

Keeping dangerous people behind bars has received far more attention than has the fairness of keeping low-income people locked up because they can't pay.

But a far greater number of people would be eligible for release before trial than would be deemed dangerous and ineligible for bond, state Supreme Court Justice Charles Daniels, New Mexico's leading bail reform proponent, says in a recent interview.

Based on the experience of Washington DC 's courts, where judges can deny bail to dangerous individuals, "we think the amendment would affect maybe 15 percent of people jailed who are dangerous, maybe less," Daniels says.

Daniels and Pepin pointed to a number of studies from around the country—New York, Washington DC, Kentucky, Colorado and New Jersey—they say show the need for, and success of, bail reform. Some of the studies found that the bail system had a disproportionate impact on people of color. Others found that even a few days in jail can be devastating for many.

And two of the studies showed that people released from jail without the burden of a commercial bail bond were just as likely to return to court as those who had paid a bondsman to get out.

"Under our system of justice, you are presumed innocent," Daniels says. "Yet, because of this money-for-freedom system … we ended up with something that only the US and the Philippines in the civilized world use today."

Jeff Clayton, national policy director for the American Bail Coalition, an industry group that opposes SJR1, points to a contradictory study that found commercial bonds are more effective than other means in ensuring defendants' return to court.

The report's authors didn't do a comprehensive study of New Mexico jails, "so this proposal is based on philosophy more than on information," Clayton says.

Regardless, he adds, setting bail "is a decision that's left to the judges now, and we should leave it like that."

The Madrid family’s bail bond businesses along 5th Street in downtown Albuquerque are a few blocks from the city’s state and county courthouses.
The Madrid family’s bail bond businesses along 5th Street in downtown Albuquerque are a few blocks from the city’s state and county courthouses. | Jeff Proctor

Madrid, the Albuquerque-based bondsman and president of the state bail association, is harsher in his assessment.

"Guess what? Life isn't fair," Madrid says. "It's more a matter of economics, I believe. If someone goes to jail, we believe they should have the ability or the option to post a bond. If they can't do that or don't want to do that, then they can wait in jail till they're seen by a judge."

He describes an argument for release from jail on financial grounds as an "excuse" and compares it to someone demanding a free meal in a restaurant. Further, Madrid says there is no requirement in SJR1 to verify that people can't afford a bond.

"It just encourages lawlessness," Madrid says. "These people committing crimes know that all they have to do is say they're poor."

Financial impacts on the industry would be swift and certain if voters approve SJR1, Madrid said. That forms the basis for part of his opposition.

"Well, of course we are" going to lose money, he said. "And that is true. But it's not just the money. It's the service we provide and all of the things that we do that we don't get paid for."

This story was published by New Mexico In Depth as part of its “Justice Project.” Read more at nmindepth.com