Bail on NM ballot: Should money determine freedom?

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Stuart Palley for Reveal

Tom Chudzinski, 62, spent 34 days in jail in Albuquerque because he couldn't get $50 to post bond following an arrest on a drunken driving charge. His case was dismissed for lack of evidence, but he still lost his motorhome, a lifetime of belongings and clothes. Credit: Stuart Palley for Reveal


Tom Chudzinski rode out of Albuquerque on a Greyhound bus before the sun rose one morning last month, his only remaining possessions tucked into a backpack, a small duffel bag and a cardboard box, which held his disassembled bicycle.

The retired architect had pulled into Albuquerque five months earlier in a motorhome crowded with the keepsakes from his 62 years of life: power tools, drafting instruments, personal records and clothing. He was living in the home while traveling the western U.S.

The unraveling began on June 3, when Bernalillo County sheriff’s deputies knocked on the door of his motorhome and, smelling alcohol on his breath, arrested him on suspicion of drunken driving. Although they hadn’t seen him driving, they believed he had crashed his RV into a parked vehicle at a truck stop that sits on a dusty patch of mesa on the city’s far west side.

Two days later, a judge set Chudzinski’s bond at $500 cash or surety after considering his lack of ties to Albuquerque and reviewing his record — a handful of petty misdemeanor charges from California in the 1970s, a drunken driving conviction in 2012, and a guilty plea to felony battery that stemmed from a fight with his brother in 2006.

That meant just $50 paid to a bail bondsman would have set him free while his case was pending.

Chudzinski, who gets by on a meager fixed income, could not come up with the cash. And none of the  bondsmen he called from the county jail would put up the paltry sum for his release because he had no ties to the area.

Chudzinski sat behind bars for 34 days. He read books, watched fights break out. The food was bad. Noticing his pronounced jowls and ski-slope nose, Chudzinski’s fellow inmates nicknamed him “Mr. President,” after Richard Nixon.

His public defender asked a different judge to drop the bond. On July 7, that judge released him on his own recognizance. But his troubles were far from over.

By the time his case was dismissed last month for lack of evidence, Chudzinski was living in Albuquerque homeless shelters and eating meals at free kitchens. His motorhome with most of his possessions trapped inside sat on an impound lot, accruing fees he also couldn’t afford.

“I really don’t have any other choice right now other than to live out on the street,” Chudzinski says in his public defender’s office not long after the dismissal of his case. “I don’t have really anything other than what the homeless shelter can give me as far as clothes and a place to stay.”

The details of Chudzinski’s story might seem extreme, but time spent in jail due to financial hardship as a person’s case wends through the courts is hardly rare in New Mexico. Hundreds of people with low bonds like Chudzinksi’s sat in the Bernalillo County jail for three days or more during July, August and September, according to reports compiled for Bernalillo County and provided to New Mexico In Depth and Reveal from the Center for Investigative Reporting.

Despite multiple requests, Bernalillo County refused to provide raw data that would have allowed a more thorough examination of who is sitting in jail, what their bonds are and how long they stay incarcerated.

The incomplete picture aside, on Nov. 8, New Mexicans will vote on a constitutional amendment to overhaul the use of commercial bail in the state. Early voting already has begun. The system that swallowed Tom Chudzinski and continues to ensnare thousands of others around the country is ripe for a reordering, reformers say.

The nation’s justice system rests on the premise that people are innocent until proven guilty. Yet commercial bail programs undermine that promise: those with money may go free no matter how dangerous they are while non-violent, low-income people often sit behind bars waiting for their trials.

The U.S. Department of Justice considers the commercial bail system largely unconstitutional, disproportionately affecting poor people and, in many cases, minorities. Reformers point out that the United States is one of only two countries that uses a private, for-profit bail system. The Philippines is the other.

Policy makers in Washington, D.C. and statehouses across the country are debating whether and how to reform the criminal justice system, with bail one front in the battle.

New Mexico now finds itself at the center of that fight.

The amendment on the New Mexico ballot would bar judges from holding non-dangerous people in jail solely because they can’t pay their way out. It also would allow them to deny bail to defendants who are proven dangerous.

The push for the amendment in 2015 coincided with the killing of two police officers and an increase in crime in the state’s largest city. The accused shooters were both repeat violent offenders, but they were not out on bail. Since then, three more New Mexico police officers have been fatally shot in the line of duty.

If the amendment passes, New Mexico will join five states — Colorado, Oregon, Kentucky, Illinois and New Jersey — that have scrapped or curtailed the use of commercial bail, as has the District of Columbia, where only about 15 percent of people are jailed pending trial. That number is about 40 percent in New Mexico.

Many believe the amendment, which would diminish but not abolish commercial bail, could create a more equitable system. But concerns remain about whether it opens the door to potential abuse.

There has been no public polling on the ballot measure. But a veteran New Mexico election watcher and pollster believes it has a good chance of passing because it is written with a “positive spin.” Many voters, the pollster says, will encounter the proposal for the first time in the voting booth.

“Ballot language matters,” says Brian Sanderoff, president of Research and Polling, Inc.

From worst to merely bad

For years, New Mexico had one of the nation’s highest rates of pretrial incarceration. It remains high, but a November 2014 state Supreme Court decision authored by Justice Charles Daniels spotlighted a decades-old system many had used but few had questioned – at least publicly.

Walter Brown, a murder defendant, had spent more than two years in jail before trial on a bond he could not afford. The state’s top court ruled that bail had been set too high, violating the state constitution. The case made no new law, but Daniels, who has become New Mexico’s leading  reform advocate, admonished judges to use bail only for its original purpose: to ensure a defendant’s appearance in court.

Judges like Sharon Walton in Albuquerque took note.

On a recent Wednesday morning, Walton’s misdemeanor docket ticks past at a brisk clip. For 17 years, she has sat on the bench at Metropolitan Court, the state’s busiest, in its most populous county.

On this day, 24 defendants, all of limited means, appear by video uplink from the county jail. Dressed in orange jumpsuits, they look like goldfish in a crowded bowl. Hadley Brown, an assistant public defender, also appears on the video screen, standing next to her clients.

She is meeting them for the first time.

Walton’s job at proceedings like these is to decide first whether probable cause exists that the defendant committed the crime, then whether they stay in jail. If they are released, she must set the conditions.

These are difficult, life-altering decisions, and the judge has limited information in front of her: a brief report on the defendant’s history from a background investigator and the charging documents, written by police officers.

Hadley Brown asks Walton to release most of the defendants, which is routine. Occasionally, the assistant district attorney, who sits in the courtroom, objects. The background investigator makes recommendations, too.

Walton releases some defendants on their own recognizance, others to pretrial supervision. She requires some to sign a document promising to pay the court money if they don’t return. And, for just a few of them, she orders a cash or surety bond, meaning the defendant pays a bail bonds company a fee — usually 10 percent of the total amount — and the company puts up the rest.

Before the Brown decision in 2014, Walton, like the other judges at Metro Court, relied heavily on cash or surety bonds — and the bondsmen who sell them.

Justice Daniels’ order led her to start to see things differently. Later came a cold splash of water in the face.

“About six months, a year ago, there was some case in the media, and I turned and I looked at my husband and I said: ‘What if I have kept somebody in jail that didn’t belong there?’ Walton says in an interview, just off the bench and wearing her judge’s robe. “And he looked at me and he said: ‘Of course you have.’”

Metropolitan Court Judge Shardon D. Walton, who hears cases in Bernalillo County, said she started to see the cash bail system differently after a 2014 Supreme Court ruling that a defendant's bail had been set too high.

Metropolitan Court Judge Sharon D. Walton, who hears cases in Bernalillo County, said she started to see the cash bail system differently after a 2014 Supreme Court ruling that a defendant’s bail had been set too high. Credit: Marjorie Childress/New Mexico In Depth

Two years after the Brown ruling, some of its effects have been documented. It contributed to a 50 percent drop in the Metropolitan Detention Center’s population — from about 2,800 in 2014 to about 1,400 now. Tighter speedy trial rules, fewer officers making fewer arrests and other factors helped to shrink the number of inmates, too.

Court officials, attorneys, policy makers and the bail bonds industry continue to debate the legacy of the 2014 ruling, however.

Prosecutors and law enforcement officials say the case has led to the release of too many dangerous people as judges try to adhere to the Brown decision’s “least restrictive means” principle when setting conditions of release.

Assistant District Attorney Candace Coulson points to a man she is prosecuting for the 15th time in five years for everything from auto burglary to armed robbery. He has posted relatively low bonds for several of the charges, Coulson says.

“It is a very powerless feeling, because you just stand there and you know what you know and there’s nothing that you can do about it,” she says. “And do you feel completely helpless.”

Public defenders say despite the 2014 ruling too many of their clients who are not dangerous still languish in jail on low bonds as they await trial.

“I have had judges say: ‘I don’t want you getting out of jail. I’m setting bond at $10,000 cash,’” Hadley Brown says. “The judges aren’t always that up front about it, but judges constantly set bonds that they know absolutely that the defendant cannot post.”

She mentions one of her clients as an example: Tom Chudzinski.

Judge Walton is mindful of the competing perspectives.

“The idea that somebody might get hurt because I allowed somebody to get out? Obviously you know we all dread that,” she says.

But jailing people prior to establishing their guilt — just because they don’t have money — exacerbates a perception that there are “two systems of justice,” Walton says.

“That causes people to doubt and distrust the whole criminal justice system, and then that leads to all kinds of social ills,” she says.

On a recent Thursday morning, Tom Chudzinski finishes a cup of coffee in The Rock at NoonDay ministry’s large gymnasium, not two miles from the Metro courthouse where his $500 bond was set.

As he walks outside, Chudzinski’s skin is rough and ruddy from so much time spent homeless and in the elements. He thinks back on what happened after the judge set his bond.

“I’m not a violent person,” he says. “I’m not a threat to society. There’s really no reason to hold a person like me in jail. A lot of the deputies in jail would look at me and say: ‘Hey, what are you doing in here? You don’t fit here at all.’ And it just took them 34 days to realize that maybe I don’t.”

Reform is not a new conversation

The latest national movement to reform the cash bail system follows in the steps of 1960s reformers.

Robert F. Kennedy began agitating against the commercial bail system in 1964, when he was U.S. attorney general. Two years later, Congress passed the Bail Reform Act, essentially doing away with commercial bail in the federal system. Little has changed in the states, though.

As one of the point people for the U.S. Department of Justice’s Access to Justice Initiative, Lisa Foster has included bail reform in her traveling DOJ roadshow in recent months.

Foster cites two concerns with the cash bail system. First, poor people are treated differently from people with access to money who have similar criminal histories and are charged with similar crimes, she says. That’s a violation of the equal protection clause of the 14th Amendment.

“We (also) worry that people who are held pre-trial may feel compelled to plead guilty to an offense for which they may not be guilty just to get out of jail,” she says.

Justice Department lawyers have filed amicus briefs in court cases to push for reform, most recently in a Georgia case involving the bail system there. It marked the first time the department had weighed in on a federal appeals court case.

Matthew Coyte, president of the New Mexico Criminal Defense Lawyers Association, was born and raised in Great Britain and remembers his introduction to the system.

“I walked into a courtroom and everyone’s in chains and jumpsuits in a misdemeanor court,” Coyte says of people who had not been found guilty. “I was flabbergasted. But it’s very normal in New Mexico.”

For years, lawyers have discussed their concerns among one another. But that conversation has never been so public as it is now.

“I always had an uneasiness about this money bail system but I never really focused on it that much either as a lawyer, which I was (for) 38 years, including some time as a law professor, and in the years I’ve been on the court,” says Justice Daniels.

Out of nearly 20 people involved in the criminal justice system interviewed for this story, none could say how or why the system developed as it did.

“It’s going to be hard to find evil villains in this,” Daniels says. ”This is one of those things that sort of grew by drift over the years. It’s happened all over the country.”

What’s clearer is the impact the system can have on people’s lives.

Chudzinski didn’t have the cash to claim his motorhome when he was released from jail in July. Daily impound fees reached $1,400 while he sat behind bars. When he left jail, he had nowhere to live.

He faces a potential forfeiture proceeding on the motorhome because he can’t pay the impound fees. It is unclear what his options are.

I had a lot of personal pictures and just financial records from businesses that I owned, personal financial records, things that I wanted: tools that I’ve had for 40 years,” he says. “Just lots and lots of personal things that are now gone. And I doubt that I will ever see them again.”

Reformers say Chudzinski’s case exemplifies how the current system disproportionately affects the poor, a particularly salient point in New Mexico, where one in five residents live below the poverty line — the nation’s second highest rate.

They also point to studies that show low-level defendants with minimal criminal histories are more likely to lose jobs, housing and custody of their children after two or three days in jail. And low-level defendants are more likely to commit new crimes if they are jailed for longer than 24 hours, the studies show.

Numbers are hard to come by

State officials have estimated the amendment, if passed, would reduce New Mexico’s pre-trial detention population by 10 percent and save taxpayers here $18 million. It costs $72 a day to house inmates in county jails.

But that estimate is based on studies conducted in other states that have enacted bail reform. Determining the number of people like Tom Chudzinski who sit in jail around New Mexico due to financial hardship is difficult.

Last year, in a survey by the New Mexico Association of Counties, 19 of the state’s 28 county jails reported about 100,000 jail bookings total in fiscal year 2015. Two out of three defendants were being held pretrial. That’s similar to what researchers have found in county jails nationwide. But the New Mexico survey, like the national research, didn’t show how many of those were in jail solely because they could not afford bond. Nor is it clear how many of those defendants could have been held in jail because they were dangerous. And the group’s survey did not include figures from the Bernalillo County jail, by far the state’s largest.

Over the course of several months NMID and Reveal requested access to raw data from the Metropolitan Detention Center and the state court system. The goal was to examine the jail population based on a variety of factors, including bond amounts, length of stay and race and ethnicity. Bernalillo County officials denied the requests, however.

Instead, the county’s contractors at the Institute for Social Research provided three “monthly reports,” each of which took a snapshot of a single day: July 31, August 31 and Sept. 30. On average, for those three days, about 170 people had been sitting in the Bernalillo County jail three days or longer on bonds of $5,000 or less. In most of those cases, that means the person could have bought his or her freedom for $500 or less – roughly 10 percent of the overall bond amount.

That’s about 40 percent of all those being held on bond in the jail on each of those days, the reports show.

The origin story of the constitutional amendment  

The Supreme Court’s ruling in the Brown case, which was unanimous, signaled that the justices no longer had a tolerance for lower court judges using commercial bail to hold non-dangerous people of limited means in jail.

Charles W. Daniels, chief justice of the New Mexico Supreme Court, has pushed to amend the state Constitution to reform bail, which voters will weigh on Election Day.

Charles W. Daniels, chief justice of the New Mexico Supreme Court, has pushed to amend the state Constitution to reform bail, which voters will weigh on Election Day. Credit: Marjorie Childress/New Mexico In Depth

But Daniels and others felt current law still left judges with the untenable choice — the one Judge Walton described: Choosing between someone’s constitutional rights and safe streets.

So he and allies began lobbying the New Mexico Legislature to approve the constitutional amendment during this year’s regular legislative session.

The bail bond industry pounced.

Gerald Madrid, whose family has been in the bail bonds business for three generations, says the Brown decision has led to a massive reduction in clients for his family business. It forced judges to use more “unsecured bonds,” when defendants promise to pay the court if they don’t show up for hearings. Judges also are releasing more people to pretrial supervision programs, or with no conditions at all.

The constitutional amendment cleared the Legislature, but not before the bondsmen and their lobbyists won a concession: State lawmakers agreed to language that would allow judges to require proof of poverty from defendants. The bondsmen argued anyone could claim poverty and escape the obligations of a money bond, cutting into the industry’s profits and letting dangerous people go free.

The New Mexico Criminal Defense Lawyers Association and the American Civil Liberties Union of New Mexico were wary from the start because of a provision in the amendment that would allow judges to deny certain defendants bail. They believed it could ensnare people who are not dangerous. But they supported the amendment.

The two groups withdrew support after lawmakers agreed to the bondsmens’ proposed requirement for proof of poverty, saying it could place an undue burden on poor people and lead to longer stints in jail before trial.

Coyte, president of the defense lawyers’ group, says the bail system needs to change, but questions whether a constitutional amendment is necessary.

The problem, he says, is that judges aren’t following the current rules that allow them to deny bail to some murder defendants and to place temporary holds on other violent offenders. The judges also have discretion to release people who are not dangerous and are charged with minor offenses without money determining whether they go free.

“The current bail system in New Mexico, if it were applied according to the rules, wouldn’t be that bad,” he says.

The Madrid family agrees with Coyte that the constitutional amendment isn’t necessary, but for different reasons. They say the bail system is not broken. It’s the best way to make sure defendants come back to court after they are released from jail.

Despite the concerns, there has been no negative advertising and no glossy mailers asking voters to reject the ballot measure.

Bondsmen say they provide needed service

Bail bondsman Gerald Madrid, standing outside his Albuquerque office, thinks New Mexico's money bail system does not need to be reformed.

Bail bondsman Gerald Madrid, standing outside his Albuquerque office, thinks New Mexico’s money bail system does not need to be reformed. Credit: Marjorie Childress/New Mexico In Depth

Gerald Madrid’s office is a few blocks from the courthouse. On a shelf are photographs of Madrid with reality TV star and bail bonds superhero Duane “Dog the Bounty Hunter” Chapman and David Clarke, the firebrand conservative Milwaukee County sheriff.

The Madrids have been in business in Albuquerque for three generations. Gerald Madrid says he has helped release some 60,000 people facing criminal charges in the last 30 years. Business was so good his brother, John Madrid, and other relatives opened their own bail bond companies.

Since the Brown decision, however, New Mexico judges’ reluctance to set the kinds of high-dollar surety bonds that for years were the Madrids’ bread and butter have led some members of the clan to consider pulling in their shingles.

They do more than make money off the system, the Madrids say. They ensure  defendants show up to court.

“There’s nothing that’s put up in advance, other than a defendant’s promise to return to court.,” Gerald Madrid says. “… the judge is relying on the defendant to bring himself to court with no consequences if he doesn’t.”

The brothers say arrest warrants have increased since the Brown decision, and fewer defendants are showing up for their court dates. Their contention contradicts the latest numbers. The Administrative Office of the Courts shows a decrease in the number of warrants issued since the Brown decision.

The Madrids, like national bail bonds industry groups, have vocally opposed bail reform. But since their legislative victory earlier this year, the family has not actively opposed the amendment here.

‘So much better than the status quo’

Even among those who support change, there is apprehension about how the amendment is written.

“It’s very confusing in some respects,” says Coyte of the defense lawyers association.

Kate Thompson, an assistant public defender, is struggling with her decision and likely to vote against the measure, she says.

“As far as what I see in misdemeanors, I don’t think the bail amendment would necessarily make a huge difference,” Thompson says, sitting in her office near a stack of case files. “I think it could make it worse in terms of arguing about a defendant’s ability to pay.”

Justice Daniels says the concerns about the constitutional amendment are unfounded. He dismisses the bondsmens’ objections as financially motivated. And he says bail reform in Washington, D.C. 20 years ago did not lead to judicial abuses as Coyte and others suggest might happen in New Mexico.

“I think they were worried that this amendment was going to result in a greater detention of people prior trial than currently exists,” he says. “I think they’re absolutely wrong about that. I think history will show it to be so … This amendment clearly is going to be so much better than the status quo for all concerned.”

Tom Chudzinski with his bike on the residential street in Mission Viejo, CA where he is currently staying.

Stuart Palley for Reveal

Tom Chudzinski with his bike on the residential street in Mission Viejo, CA where he is currently staying. Credit: Stuart Palley for Reveal

As for Tom Chudzinski, he won’t be voting in New Mexico come November.

On Sept. 28, he walks out of the Albuquerque Outreach Center dragging a cardboard box containing his disassembled bicycle. He carries a small duffel bag in one hand and has a backpack slung over his other shoulder

“One of the bad things that happens when you go to jail is you lose the ability to function in the world,” Chudzinski says. “A whole big portion of your life stops, and it stays that way until you can put it back together.”

Half an hour later, he is at the Greyhound bus station in downtown Albuquerque. One of the homeless outreach organizations has purchased him a ticket to Mission Viejo, California, where he will stay with family.

He is glad to be leaving the city.

“At 62, I can’t continue to keep doing this,” he says.

He considers all that has happened because he couldn’t scrounge up $50 for bail — and all he must do to get his life back to normal.

“At my age, it’s really not something I really had planned to have happen to me.”

New Mexico In Depth’s Sandra Fish contributed analysis for this story.



6 thoughts on “Bail on NM ballot: Should money determine freedom?

    • some group in ABQ needs to set up a GoFundMe page for Mr Chudzinski to get his motor home and other possessions back and for funds for him to come get it and go home where he doesn’t get irrationally charged with DUI in a motor park while parked. Sounds to me like the police were just looking for someone to charge with that.

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