Bail amendment passes convincingly

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New Mexicans on Tuesday overwhelmingly voted to limit the role of money in judges’ decisions about which defendants stay locked up and which go free before trial.

According to unofficial election results from the New Mexico Secretary of State’s website, roughly 87 percent, or 610,000 of 699,000 New Mexicans supported a change to the state constitution aimed at reforming the use of commercial bail.

Since statehood, the New Mexico Constitution has presumed all defendants are “bailable by sufficient sureties,” except in certain capital cases. But reformers say that archaic, broad-brush language led to an over-reliance on so-called “cash or surety bonds,” where defendants pay a fee—usually around 10 percent of the total amount—to a bondsman, who puts up the rest to secure a person’s release.

That set up two systems of justice—one for those with money and another for those without—that has kept too many poor people accused of minor crimes behind bars before their trials and let too many dangerous people back on the streets because they could raise bail.

The constitutional amendment passed by voters allows judges to deny bail to defendants found dangerous at a pretrial hearing. It also bars judges from holding non-dangerous people in jail simply because they don’t have money.

With the amendment’s passage, New Mexico joins Colorado, Oregon, New Jersey, Kentucky and Illinois in either discarding or reining in the use of commercial bail. The District of Columbia enacted bail reform 20 years ago.

The decisive victory for the measure belied a bruising battle during the January legislative session. Republicans in the state House threatened to strip the poverty protections from the measure until New Mexico bondsmen and their lobbyists won a concession from Sen. Peter Wirth (D-Santa Fe) and state Supreme Court Chief Justice Charles Daniels, two of New Mexico’s leading reform advocates.

At the bondsmens’ urging, lawmakers added language that would let judges require that defendants prove they are poor before being released on no bond. That’s sure to keep dollars in the pockets of the multi-million-dollar bail bonds industry.

Daniels, whose regular presence at the Roundhouse raised eyebrows, was roughed up by legislators and lobbyists who accused him of everything from logrolling to violating the Judicial Code of Conduct by pushing for change.

It was worth it, Daniels said on election night.

“I’d like to think people looked at it and saw that it made sense,” he said. “That’s refreshing to see in an election, isn’t it? … Now the hard work starts: It’s going to take changing some antiquated practices and old habits. It’s more of a beginning than an end.”

Lawmakers have estimated the new system will reduce the statewide pretrial jail population by 10 percent, saving taxpayers about $18 million annually. But the estimate is based other states’ experiences. That’s because there are no statewide data that show how many people are sitting in New Mexico’s 28 county jails just because they can’t afford bail.

New Mexico In Depth andReveal from The Center for Investigative Reporting examined the use of bail in late October and found that hundreds of people with low bonds sat in New Mexico’s largest jail the Bernalillo County Metropolitan Detention Center, for three days or more during July, August and September, according to reports compiled for Bernalillo County.

Meanwhile, during fiscal year 2015, two-thirds of the more than 8,000 people booked into the Santa Fe County jail were being held pretrial. How many of those might be freed—or jailed until trial without bail—with the constitutional change is unclear.

The amendment enjoyed broad support at first from groups as disparate as the Greater Albuquerque Chamber of Commerce, the New Mexico District Attorneys’ Association and the American Civil Liberties Union of New Mexico. However, the ACLU and a defense lawyers group dropped their support after the bondsmens’ legislative triumph, fearing the amendment could actually lead to more poor people languishing in jail before trial.

State bondsmens’ groups agreed not to oppose the constitutional change, but most in the business never believed the system needed change.

A version of this story ran in the Santa Fe Reporter.

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