On April 20, the Bernalillo County Criminal Justice Coordinating (BCJCC) met and made changes to the Public Safety Assessment Tool, better known as the Arnold Tool, that the 2nd Judicial District Court uses to determine what level of supervision a defendant should be on if they are released pending trial. The changes were made to clear up misunderstandings about how the Arnold Tool is used in pretrial detention cases.
The BCJCC is a 12-member council created by the New Mexico Supreme Court. The BCJCC members are designated 2nd Judicial District Court and Metropolitan Court Judges, the District Attorney, the County Sheriff, a County Commissioner, a City Councilor, the APD Chief, the County Manager, the City CAO, the Public Defender, and representatives from the NM Criminal Defense Association and the Probation and Parole Department.
When a criminal defendant is arrested and in jail, a prosecutor must file a Motion to Detain the defendant in custody until trial with no bail. After a prosecutor files a Motion to Detain, the tool assigns a recommended level of monitoring for the court to consider under pretrial services should the court decide to release a defendant pending trial, including house arrest and ankle bracelet monitoring. An evidentiary hearing is held where the prosecutor has the burden of proof to show that the defendant poses an immediate threat and risk to the public and that there are no reasonable conditions of release to protect the public. The postscript to this article outlines the 9 factors in the Public Safety Assessment Tool of an accused defendant.
Last year the court’s reliance the Public Safety Assessment Tool came under severe scrutiny and criticism by prosecutors, law enforcement and elected officials, including the Governor and New Mexico legislators, saying violent criminals were being release pending trial and committing crimes when they should have been in jail. Pretrial detention legislation was introduced in the 2023 legislative session, but failed, that would have mandated that a defendant simply charged with a violent crime be presumed violent and jailed until trial. The presumption of being violent mandating detention until trial is contrary to the constitutional right of due process of law and the presumption of being innocent until proven guilty.
The Arnold Tool was attacked by critics when it recommended releasing a defendant charged with a violent crime with critics arguing that its recommendation of release was mandatory and not discretionary by the courts. The courts have now removed from the Public Safety Assessment Tool the categories of “Detention” and “Released on Own Recognizance” (ROR) which are on the opposite end of the Arnold Tool Maxtrix.
2nd Judicial Chief Judge Marie Ward said inclusion of the two categories at the far ends of the Public Safety Assessment tool is not viewed as “best practices” but were added as a compromise at the request of one of the stakeholders on the BCJCC. Judge Ward said, just like before the changes were made, a judge must consider evidence presented by the prosecutors and the defense attorneys to determine whether someone poses and immediate danger to the public and whether there are any conditions of release that could ensure the safety of the community. If a judge determines the person can be released, then the Public Safety Assessment gives them guidance on what level of supervision the defendant should be on.
Judge Ward described the changes as follows:
“What the Arnold Tool really tells us is, not this defendant, but a defendant in similarly situated circumstances … how likely were they to re-offend. … More evidence and argument can come in regarding this individual and other risk factors. … These modifications are only intended to clarify the misconceptions that have been out there that the assessment somehow dictates whether someone is released or not. … That’s not the case. It’s always the judge making a decision, and its always been that way.”
Although Judge Ward stressed that the changes are not a “game changer,” District Attorney Sam Bregman had this to say:
“Basically, this is a big deal. … I’m so thrilled that the judiciary has looked at this issue and understood the many concerns we expressed about how the tool was influencing the decisions that judges should be making.”
Dennica Torres, with the Law Offices of the Public Defender had this to say about the changes:
“We are always grateful when the court can better clarify procedures.”
The link to the equated news source material is here:
ARNOLD RULE EXPLAINED
The “Arnold Rule is a matrix tool used by the courts identifying those factors that are considered in holding an accused pending trial. It is a Public Safety Assessment (PSA) tool. Several studies have shown the Arnold Tool has an impressive success rate and the state’s pretrial detention system is, in general, effective in most cases. It’s the exception and not the rule that has proven problematic for the courts when it comes to public perception.
ROLE OF THE JUDICIARY
Judges are required to make the critical decision after a person is charged with a crime about whether to release the person pending trial. That decision is made at the time of arraignment when an accused is bought before the court, the accused is informed of the charges and constitutional rights and enters a plea of not guilty or guilty. The arraignment usually includes arguments of conditions of release and bail.
“Under the American system of justice, there’s a presumption that defendants are innocent until proven guilty. It is Article II, section 13 of the New Mexico Constitution that guarantees that those accused of a crime are entitled to be released from custody while awaiting trial, except in limited circumstances. There is a failure of the pretrial system if low-risk nonviolent defendants who are entitled to be released are nevertheless detained in jail simply because they cannot afford bail.
Judges place a priority on two considerations when making pretrial release or detention decisions:
- Whether the defendant will commit a crime, particularly a violent crime, if released, and whether the person will return to court.
- If a defendant is to be released, judges decide whether to impose certain restrictions on the individuals, such as requiring an electronic monitor to track their location.
It runs counter to our constitution to require non-violent, low-risk offenders to spend long periods of time in jail pending trial. It is also potentially damaging to a defendant. Pretrial detention can cause defendants to lose their jobs or housing, preventing them from caring for their family or paying their bills.”
PUBLIC SAFETY ASSESSMENT TOOL
Public safety is a serious concern for judges, who must balance fairness with protecting our communities when making pretrial detention or release decisions. To mitigate the risk to all New Mexico communities and defendants, members of the state’s criminal justice system and the courts implemented the Public Safety Assessment (PSA) tool.
“When money bail is a condition of release, many low-risk defendants are kept in jail because they cannot afford the bail bond. At the same time, high-risk defendants, such as repeat violent offenders who pose an elevated public safety risk, are often released if they can afford bail.
…
Under the New Mexico Constitution, people charged with a crime have a right to bail, except in limited circumstances. The law provides for the pretrial release of a defendant under the least restrictive conditions necessary to protect community safety and assure the defendant will return to court.
The Arnold Rule Public Safety Assessment tool (PSA) provides a reliable, evidence-based information system to assist judges as they consider whether a defendant should be released to protect the public while awaiting trial. The PSA tool, using information related to a defendant’s age, criminal history, and current charge evaluates the likelihood that a defendant will commit a new crime, commit a new violent crime, or fail to appear for their court hearing if released before trial. With information from the PSA, judges can make informed decisions that are evidenced based and not speculation nor conjecture.
The criminal justice system in order to be effective must focus on protecting the public while safeguarding citizens’ rights. Objective, research-based information about the public safety risks posed by a defendant can ensure fairness in pretrial release decisions while making our justice system more effective and efficient. Local governments can save taxpayer money if judges can better identify defendants who do not need to be jailed before trial because they pose a low threat to public safety.”
Judges in the Second Judicial District Court, the Bernalillo County Metropolitan Court and in the district and magistrate courts in San Juan County in the Eleventh Judicial District can use the PSA’s objective data as part of the information they consider in pretrial release decisions made soon after a defendant is arrested and charged with a crime. Court staff prepares an assessment for each criminal defendant, which is provided to judges as well as the prosecutor and defense counsel before that defendant’s initial appearance in court known as “arraignment”.
RECOMMENDATIONS DO NOT SUPERCEDE JUDICIAL AUTHORITY OR DISCRETION
“The Arnold Rule PSA measures the likelihood that an individual will commit a new crime, particularly a violent crime, upon release, as well as the likelihood that he or she will appear at a future court hearing. The risk assessment considers nine factors related to a defendant’s age, criminal history and current charge that research has shown accurately predict risk. The tool then generates risk scores for each defendant. This information, along with other pertinent facts from a defendant’s case, is provided to judges to assist in their pretrial decision making. The PSA does not use information that is considered potentially discriminatory, such as a person’s ethnic background, income, level of education, employment status, neighborhood, or any demographic or personal information other than age.
While the Arnold Rule PSA can be a helpful informational tool, it is important to remember that judges always have the final say in every decision. The decision about whether to release or detain a defendant and under what conditions always rests with the judge. Judges have the final say on whether or not to release a charged defendant pending trial. It is not at all mandatory or required that a Judge follow the recommendation made in the PSA report and judges are 100% free to exercise their own discretion. The PSA does not replace a judge’s discretion and does not supersede other information, including any special circumstances pertinent to a case and charges against the defendant.”
THE NINE FACTORS IN PUBLIC SAFETY ASSESSMENT OF AN ACCUSED
“The PSA is designed to promote public safety and to ensure that the criminal justice system operates in a fair and efficient manner. It uses 9 factors that research has shown are the strongest predictors of whether a defendant will commit a new crime, commit a violent crime, or fail to return to court if released before trial. The factors are:
- Whether the current offense is violent.
- Whether the person had a pending charge at the time of the current offense.
- Whether the person has a prior misdemeanor conviction.
- Whether the person has a prior felony conviction.
- Whether the person has prior convictions for violent crimes.
- The person’s age at the time of arrest.
- How many times the person failed to appear at a pretrial hearing in the last two years.
- Whether the person failed to appear at a pretrial hearing more than two years ago.
- Whether the person has previously been sentenced to incarceration.”
RISK SCORES PRODUCED
“Using the information gleaned for the 9 factors and applying them to a charged defendant, the“Arnold Rule” PSA produces two risk scores:
First, it predicts the likelihood that an individual will commit a new crime if released pending trial.
Second, it predicts the likelihood that a charged defendant will fail to return for a future court hearing.
The PSA tool also “red flags” defendants that it calculates present an elevated risk of committing a violent crime.
The PSA risk scores fall on a scale of one to six, with higher scores indicating a greater level of risk. This neutral, reliable data can help judges gauge the risk that a defendant poses.”
Links to quoted and relied upon source material are here:
ANALYSIS AND COMMENTARY
There is little doubt that, although minor in scope, the two changes to the Public Assessment Tool should go a long way in affirming that the tool is not mandatory but discretionary. It is also no substitute for a Judge to do their jobs and to use their common sense.
NOT A BROKEN CRIMINAL JUSTICE SYSTEM
The changes to Public Safety Assessment Tool should help allay the false argument and fears that have been made that our criminal justice is broken. The accusation that the system is broken has been made too many times by elected officials, especially those running for office, and many in law enforcement, including Mayor Tim Keller, APD Chief of Police Harold Medina, and District Attorneys and stake holders.
It was On September 23, 2021, Mayor Keller concluded a conference he dubbed the “Metro Crime Initiative”. Participants included APD, the DA’s Office, the Courts and many other stakeholders to address what all participants labelled the “broken criminal justice” system and calling it a “revolving door”.
The entire “Metro Crime Initiative” started with the phony premise that our criminal justice system is broken. It’s not, but the accusation none the less seriously undermined the credibility of our criminal judicial system. The blunt truth is that our criminal justice system is only as good as the stakeholders who are responsible to make it work, succeed and to do their jobs.
The 3 main components of the criminal justice system are law enforcement, prosecution and the courts. Examination of all 3 reflects a pathetic failure to do their jobs.
LAW ENFORCEMENT
APD statistics for the budget years for the last 4 years contained in its annual budgets reflect that APD is not doing its job of investigating and arresting people and getting cases to the District Attorney for prosecution.
According to APD performance measures contained in its annual budgets, APD felony arrests went down from 2019 to 2020 by 39.51%, going down from 10,945 to 6,621. Misdemeanor arrests went down by 15% going down from 19,440 to 16,520. DWI arrests went down from 1,788 in 2019 to 1,230 in 2020, down 26%. The total number of all arrests went down from 32,173 in 2019 to 24,371 in 2020 or by 25%.
See page 231, APD Performance Measures, the approved 2022-2023 annual budget:
https://www.cabq.gov/dfa/documents/fy22-approved-budget-numbered-w-hyperlinks-final.pdf.
APD’s proposed 2023-2024 budget also reflects a serious continued decline in performance measures of APD. The raw data is as follows:
The number of felony arrest APD made in 2021 was 6,621.
The number of felony arrests made by APD in 2022 went down to 6,122.
The number of misdemeanor arrests APD made in 2021 was 16,520.
The number of misdemeanor arrests APD made in 2022 went down to 9,799.
The number of DWI arrests APD made in 2021 was 1,230.
The number of DWI arrests APD made in 2022 went slightly up to 1,287.
APD’s clearance rate of crimes against persons (e.g., murder, rape assault) in 2021 was 56%.
APD’s clearance rate of crimes against persons (e.g., murder, rape assault) in 2022 went down to 44%.
APD’s Clearance rate of crimes against property (e.g., robbery, bribery, burglary) in 2021 was 12%.
APD’s Clearance rate of crimes against property (e.g., robbery, bribery, burglary) in 2022 went down to 9%.
APD’s Clearance rate of crimes against society (e.g., gambling, prostitution, drug violations) in 2021was 77%.
APD’s Clearance rate of crimes against society (e.g., gambling, prostitution, drug violations) in 2022went down to 57%
See page 154 for APD’s performance measures 2023-2024 proposed city of Albuquerque Budget:
https//www.cabq.gov/dfa/documents/fy24-proposed-web-version.pdf
The city is also continuing to experience a historical number of homicides. During each year of Mayor Tim Keller’s years in office, the city’s murder rates rose, dropped one year, and then rose to a historical high. Following is the breakdown of homicide by year:
2017: 72 homicides
2018: 69 homicides.
2019: 82 homicides
2020: 76 homicides
2021: 117 homicides
2022: 120 homicides
https://www.abqjournal.com/1534762/homicide-numbers-high-despite-pandemic.html?amp=1
https://www.abqjournal.com/2458296/remembering-some-of-2021s-homicide-victims-in-abq-ex-total-
THE PROSECUTION
When former Bernalillo County District Attorney Raul Torrez ran for District Attorney the first time 2016, he coined his campaign slogan and said our criminal justice system was broken and he was the guy to fix it. Torrez continued his assault on the courts when he successfully ran for Attorney General last year.
Least anyone forget, during his first term as DA, Torrez accused the District Courts of being responsible for the rise in crime and releasing violent offenders pending trial. Torrez accused defense attorneys of “gaming the system” to get cases dismissed against their clients. A report to the Supreme Court prepared by the District Court at the time revealed it was the DA’s office dismissing more felony cases for various reasons than the courts.
Data given to the Supreme Court revealed overcharging and a failure to screen cases by the DA’s Office contributed to a combined 65% mistrial, acquittal and dismissal rate. Under Raul Torrez, the DA’s office hit the highest voluntary dismissal rate in its history, and plea agreements with low penalties became the norm. Ostensibly, newly appointed District Attorney Sam Bregman is doing his best to turn things around by attempting to hire as many as 40 prosecutors, even going as far as advertising to recruit attorneys and increasing pay. Bregman is attempting to fill long standing vacancies within the office that Torrez allowed to fester during his entire tenure as District Attorney.
It was very disappointing when in January during the 2023 New Mexico Legislature newly appointed Bernalillo County District Attorney Sam Bregman came out in favor of the “reputable presumption” legislation bill pushed by his predecessor and the Governor who appointed him. Bregman told Senate Judiciary committee members:
“[New Mexico’s] pretrial system is broken … plain and simple. … I’m not blaming anybody. I’m asking for help.”
This coming from the former high-profile defense attorney Sam Bregman who for decades made a lucrative living defending defendants who were released pending trial, including one former APD police SWAT officer who was charged with killing homeless camper James Boyd. As a criminal defense attorney, Bregman never said New Mexico’s pretrial system is broken. He was known for taking advantage of it whenever he could as a defense attorney to help his clients stay out of jail pending their trial.
Notwithstanding, Bregman not blaming the courts for the city’s high crime rates and instead asking the legislature for help was a major relief. It showed District Attorney Sam Bregman has a much better understanding, some would say more maturity, of the role of a prosecutor with far more respect for the courts than his predecessor. Bregman knows and understands the limitations the Code of Professional Conduct and the Code of Judicial Conduct places upon prosecutors, defense attorneys and judges, something his predecessor never grasped.
THE COURTS
A negative perception of the courts is created when judges release violent felons and not holding them for trial without bond and simply not using their common sense. It’s common knowledge that Judges are concerned about their disqualification rates, appeals and reversals and how they are perceived by the Judicial Performance Evaluation Commission. Judges are reluctant to make decisions and hold off on making the hard decisions to avoid controversy to protect their jobs and appellate rates.
FINAL COMMENT
The criminal justice system in this country and this state has never been perfect, nor will it ever be, but it is not broken. The criminal justice system does have its flaws and a number of inequities, but to say that it is a broken system is just plain ignorance or political opportunism at its worst. Now that we have a new Bernalillo County District Attorney and changes to the Public Safety Assessment Tool, perhaps attitudes and public perception of the courts will change, but that will be dependent on the stake holders doing their jobs without blaming each other.