Public Safety & Justice

Can't Afford Bail? In One State, That Doesn't Matter Anymore.

New Mexico voters may have energized a national movement to reform the criminal justice policies that keep lower-income Americans locked up.
by | November 9, 2016

Read all of our coverage on 2016 ballot measures at governing.com/ballotmeasures.

In most of America, lower-income people who have been arrested and can't afford bail sit in jail for weeks, months or even years before seeing a judge and possibly being convicted of a crime. In New Mexico, voters decided to do away with that practice.

"In my nine years on the court, this is the single most important criminal justice reform that I’ve worked on," New Mexico Supreme Court Justice Charles Daniels told Governing in September. "There is nothing that has more potential of improving justice in our criminal justice system."

In New Mexico, as in the majority of the nation, judges use bail to detain people who they consider dangerous and to help guarantee that defendants show up for court dates. But tools to assess a defendant's threat to the public are only used in less than 10 percent of U.S. jurisdictions, and more than half of Americans can't afford an emergency $400 payment. That means dangerous people are sometimes released because they can afford their freedom, while many lower-income people who pose no threat to society stay behind bars.

The ballot measure, which passed with 87 percent support from voters, prohibits judges from imposing bail amounts that lower-income defendants can’t afford. At the same time, it gives judges more discretion to keep dangerous people in jail -- even if they can afford bail.

The amendment is part of a national push to reform court fees and penalties that disproportionately affect lower-income Americans. In August, the U.S. Department of Justice filed its first legal court opinion that criticized the bail system. Attorneys from the department’s Civil Rights Division wrote that the practice of locking up people solely because they can't afford bail violates the due process and equal protection clauses in the 14th Amendment.

Since 2013, a few places -- including Colorado, the District of Columbia and New Jersey -- have changed their pretrial release policies so that the danger defendants pose to the community and their likelihood of fleeing are the main factors that determine whether they can leave jail. In D.C., the shift away from monetary bail has resulted in most defendants being released. According to The Washington Post, about 90 percent aren't rearrested before their case is resolved, and among those who do get arrested, the majority aren't charged with a violent crime.

But D.C. is the exception. In most of the country, the determining factor is still whether the defendant can afford to post bail.

What's more, the majority of people in jail are awaiting trial and spending more time in jail than they used to. According to the Vera Institute of Justice, a think tank in New York, the average number of days that people stay in jail has increased from 14 days in 1983 to 23 days in 2013.

Nonpartisan analysts in the New Mexico Legislature estimated that the amendment would save about $17 million a year by reducing the number of people in notoriously crowded jails. That estimate took into account the loss of money from detaining dangerous defendants who otherwise would have paid high bail amounts.

In New Mexico, the amendment originated with a murder case in which the defendant, Walter Brown, remained in jail for more than two years without going to trial. Instead of paying his $250,000 bail, he agreed to wear a GPS device and make regular contact with the court. A psychologist also testified that Brown did not pose a danger to the community and wasn't likely to flee. However, the prosecution successfully argued that the seriousness of the murder charges were enough to keep him incarcerated. Not only did the state Supreme Court eventually side with Brown, but it formed a task force that recommended an amendment to the “right to bail” provision in the New Mexico constitution.

The amendment had broad support. Bipartisan majorities approved the legislation to place the amendment on the ballot, and several statewide organizations backed the measure, including the Association of Counties, the District Attorneys Association and the Coalition Against Domestic Violence.

Nonetheless, the amendment did have some critics. The heads of a civil rights group and bail bonds association both expressed concerns about the proposed changes.

The American Civil Liberties Union of New Mexico said it supported the intent of the measure, but the group withdrew its support after the House negotiated changes to appease the bail bond industry. “It feels to us like a pretty chopped-up bill,” said Peter Simonson, executive director of the state's ACLU chapter.

The final version, said Simonson, was too ambiguous and granted judges more power to detain people without bail if they're likely to flee. Before the amendment, judges could hold a defendant without bail only under rare circumstances, such as when they faced a capital felony charge. In addition, Simonson said he worried that the measure didn't explain how judges would decide whether someone was a flight risk. Without a fair and transparent process, judges could detain people on shaky evidence.

The state Supreme Court would clarify that process later, but that didn't give Simonson much confidence."This isn’t just any statute that we are amending. It’s the state constitution," he said. "The language should be clear enough that it doesn’t require rules to clarify what the language means.”

At the other end of the spectrum, the Bail Bond Association of New Mexico argued that the amendment would make it too easy to leave jail based on inability to pay. “That is absolutely a get-out-of-jail-free card just by saying, ‘I’m indigent,'" said Gerald Madrid, the association's president.

Danielson, the chief justice, dismissed Madrid's concerns, noting that the court already determines people's ability to afford counsel when it appoints public defenders.

"It's a phony issue," he said, "that makes a quick soundbite."

*CORRECTION: An earlier version of this story incorrectly listed the Criminal Defense Lawyers Association as a supporter of the amendment. 

Read all of our coverage on 2016 ballot measures at governing.com/ballotmeasures.

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