On May 8, the New Mexico Supreme Court announced changes to the state’s criminal pretrial detention system that will keep more defendants in jail before their trial. According to the new order which took effect immediately, defendants awaiting trial will now be held in jail if they are accused of a new crime while out on conditions of release if the charge falls into certain categories. They will remain in jail at least until the judge handling the original case considers whether they should stay in jail pending trial.
Those defendants already on pretrial release who are charged with a felony, or some misdemeanors, will be held in jail until a court decides whether to revoke or modify the conditions of their release. Chief Justice David K. Thomson made the announcement to promote public safety. The order requires courts to reconsider its release conditions for defendants arrested for a new crime while awaiting trial for a previous charge.
Misdemeanor charges subject the new pretrial detention ruling guidance include:
- Driving while intoxicated
- Negligent use of a firearm
- Aggravated battery
- Stalking
- Domestic violence charges, including battery against a household member
Another revision prevents district courts to use results from what is known as the Public Safety Assessment Tool. That risk assessment instrument looks at the likelihood a person is rearrested or fails to appear in court if released.
Additionally, when someone awaiting trial violates their conditions of release, such as contacting someone they shouldn’t or having a gun when they shouldn’t, judges must consider changing those release conditions. Karl Reifsteck, deputy director of the Administrative Office of the Courts said this of the changes:
“These rules are aimed at making sure we’re taking a really close look – our judges, and prosecutors and defense attorneys – are taking a close look at those defendants. … Zoom in on that small portion of folks who are being rearrested and really take a close look at them.”
Reifsteck said the New Mexico Supreme Court looked at certain data, including a UNM study that showed 18% of people accused of crimes were arrested again before trial. That was in Bernalillo County over four years. Reifsteck said this:
“There’s this slice of folks we really need to focus on and see how we can really promote public safety in regards to that group. … The Supreme Court feels strongly that in every single instance, this needs a close examination by our judges, by our prosecutors, by our defense attorneys.”
Reifsteck added there have been instances where people were released a second time after picking up a new charge.
According to the revisions, a judge must also consider whether to modify a criminal defendant’s pretrial release when they have broken their original conditions, such as missing curfew. According to a release from the state Administrative Office of the Courts (AOC):
“If a court determines no changes are necessary, it must issue an order explaining the decision. Under previous rules, such a review of pretrial conditions was discretionary.”
The new, revised Supreme Court rule is very similar in scope to Senate Bill 271, which became law this past session.
REACTION TO REVISIONS
AOC Deputy Director Karl Reifsteck said the changes will help protect communities “while honoring the constitutional rights of people accused of a crime.” AOC Director Artie Pepin said the revisions ensure that courts from the smallest towns to metro areas follow the same procedures when someone is arrested while on pretrial release. Pepin said this:
“The rules set short deadlines for hearings and issuing orders after courts consider whether to revoke or change the conditions under which a defendant was initially released to await trial.”
Chief Public Defender Ben Baur, with the Law Offices of the Public Defender, said this in a statement:
“As with any rule change, like the one announced today, we have to wait to see how it works in the courtroom. We will closely watch for its impact on our clients and our workload.”
UNM researcher Paul Guerin said it’s too early to tell how the Supreme Court rule change will play out and he said this:
“It seems to make sense, on the face of it, as a citizen.”
Guerin said many of the people who would fall under this rule would already be held anyway in the current system. He added, “What we do know is rebuttable presumptions don’t work, so this is a lesser to that.”
Mayor Tim Keller for his part said this in reaction to the new Supreme Court revised rule:
“We all know the challenges we’ve had concerning this revolving door or rearrest problem. Today, I’m grateful for our Supreme Court because they have made a very common sense but specific change. … It’s an elegant, simple, legal solution and it’s something that we’re very, very much appreciative to.”.”
APD Chief Harold Medina said this about the rule change: .
“It does assist us with our revolving door. … And honestly, it assists our judicial officials in making sure that they’re well in tune, and they get to weigh in on decisions they’ve made in the past.”
CONTENSIOUS ISSUE
Pretrial detention and pretrial release have been a major source of contention since the passage of a 2016 constitutional amendment passed by voters that did away with a “money-based” bail bond system for getting out of jail while awaiting trial. Since passage of the constitutional amendment, elected officials and candidates running for office and law enforcement have attributed rising crime rates to a “broken criminal justice system” and to the bail bond reform changes.
Attorney General Raúl Torrez, the former Bernalillo County district attorney, has been one of the most outspoken critics. Since being elected first as District Attorney Torrez has repeatedly said our criminal justice system is broken and has called for New Mexico courts to mirror those at the federal level, which uses rebuttable presumption where Defendants charged with a serious violent crime must prove they are not a danger to the public and can be released. It shifts the burden of proof from the prosecution to the defense.
A bill adopting rebuttable presumption in the state’s judicial system has failed to pass the New Mexico Legislature during the past 4 legislative sessions. This past session, Gov. Michelle Lujan Grisham pushed for the bill and, after it and other crime bills failed, she announced a special session, which is now scheduled for July.
Studies conducted by researchers at the University of New Mexico have found that the majority, or 82%, of people on pretrial release do not commit new crimes. No studies have been released publicly that have found otherwise.
Supporters and advocates of rebuttable presumption argue that it prevents a large amount of crime with minimal impact on civil liberties. However, a 2021 study by UNM researcher Paul Guerin and others at UNM’s Institute for Social Research found that rebuttable presumption requires judges to “regard large classes of defendants as dangerous by default, rather than demanding that prosecutors prove this individually.”
Researchers found that rebuttable presumption and pretrial detentions do not reduce crime because a small fraction of crime is committed by pretrial defendants and because presumptions detain many defendants for each crime they prevent. The researchers emphasized that the findings should not be taken “as an endorsement” of the current system, but in data comparison found that presumptions “would not add accuracy to the system.” “That does not mean that the system could not be reformed in other ways,” according to the findings.
Links to quoted and relied upon news sources are here:
https://www.koat.com/article/new-pretrial-detention-rules-new-mexico/60737273
https://www.kob.com/new-mexico/new-mexico-supreme-court-announces-change-to-pretrial-system/
ANALYSIS AND COMMENTARY
It was almost a year ago on May 22, 2023 that the New Mexico Supreme Court issued a unanimous opinion providing guidance to district courts in deciding pretrial detention requests from prosecutors. The justices clarified the analysis that courts should follow in determining whether legal requirements have been met for a person charged with a felony to be held in jail while awaiting trial.
Under state law, a felony defendant may be detained if prosecutors file a written motion and prove to a district court that the charged person is dangerous and that “no release conditions will reasonably protect the safety of any other person or the community.” The New Mexico Supreme Court’s opinion provided the legal reasoning for the order issued by the justices in February that reversed a District Court Judge decision denying of a Motion for Pretrial Detention of Defendant. The justices held that the district court abused its discretion in denying the prosecution’s detention request and that the District Court followed the wrong analytical framework in making its determination.
Justice Briana H. Zamora wrote on behalf of the Supreme Court as follows:
“In this case, ample evidence showed that the Defendant [Anderson] was unlikely to comply with release conditions and that the public would be put at significant risk should he fail to comply with release conditions. …
District courts must undertake a two-prong analysis in pretrial detention decision-making: The first is determining whether the defendant is dangerous, and the second prong is whether the state has proven there are no conditions or restrictions that can be imposed on a defendant – if released – to reasonably protect the public.
In analyzing both prongs, district courts must consider a range of factors outlined in a rule of criminal procedure governing pretrial detention (Rule 5-409). Those factors include the “nature and circumstances” of the charged crime, the defendant’s history, and the “nature and seriousness of the danger to any person or the community that would be posed by the defendant’s release. … All factors are relevant to both prongs because a defendant’s dangerousness is not an entirely separate consideration from whether release conditions can reasonably protect the safety of the public; rather, the nature of the defendant’s dangerousness informs whether the public can be kept reasonably safe from that danger by the imposition of release conditions.
Thus, if a district court applies the Rule 5-409 factors and determines that a defendant is dangerous, it should not cordon off those facts that it considered in the dangerousness analysis and limit itself solely to the evidence that it did not yet consider in order to rule on release conditions. District courts should take a “holistic, commonsense approach” in the analysis about possible release conditions.”
This second prong of the pretrial detention analysis, like the first prong of dangerousness, must be proven by clear and convincing evidence. However, the State must only prove that no release conditions can reasonably protect the public, not that no release conditions can possibly protect the public. … As part of its analysis, the district court must consider not only whether a defendant is likely to comply with release conditions but also the likely consequences to any person or the community should a defendant fail to comply”
That additional inquiry is related to, and must be viewed in light of, the magnitude of a defendant’s dangerousness. … For example, a defendant with a history of violent crimes who stands accused of a new violent crime may pose a significant and unjustifiable risk to the safety of any person or the community if the defendant fails to comply with release conditions.”
The Supreme Court made clear and emphasized that District Courts cannot “rely solely on the charged offense to order a defendant’s detention.” A district court “must always conduct a totality of the circumstances analysis in reaching a decision” on a motion for the pretrial detention of a felony defendant.
PRETRIAL DETENTION AND THE PUBLIC SAFETY ASSESSMENT TOOL
There has in the past been intense debate over pretrial detention and what is known as the Public Safety Assessment Tool. 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 Public Safety Assessment 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.
It was in 2023 that the District Court’s reliance the Public Safety Assessment Tool came under severe scrutiny and criticism by prosecutors, law enforcement and elected officials, including Governor Mitchell Lujan Grisham and New Mexico legislators, saying violent criminals were being release pending trial and committing crimes when they should have been in jail. The Public Safety Assessment 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.
Pretrial detention legislation was introduced in the 2023 legislative session that would have mandated that a defendant simply charged with a violent crime be presumed violent and jailed until trial. The legislation failed and did not make it out of a single legislature committee. Critics argued successfully that 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.
On April 20, 2023 the Second Judicial District Court 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 Public Assessment Tool. Second 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 Bernalillo County Criminal Justice Coordinating Council.
District 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 [Public Assessment 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.”
FINAL COMMENTARY
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.
Repeatedly, and especially during election years, it is very common for elected officials and candidates for office to proclaim that our criminal justice is broken and that the courts have become a revolving door for violent criminals. It’s a ploy that undercuts the very integrity of the courts, with nefarious politicians knowing full well individual judges are strictly prohibited from discussing in public pending cases under penalty of being removed from office. 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.
There is little doubt that the New Mexico Supreme Court has become increasingly sensitive to the perceptions and demands of the general public that violent criminals, especially those charge with murder, need to be held in custody pending trial. What is also clear is that the Supreme Court wants the lower courts use their common sense and use a holistic and analytical approach to make their decisions to protect the general public from the most violent offenders. Now the public must wait and see how much common sense the courts in fact have.
The link to a related Dinelli blog article is here: