Most courts in the United States have relied heavily on a money-based, instead of a risk-based, system to determine whether accused defendants will be held in jail or released before trial. This is true even though the trial will determine their guilt or innocence, with constitutional guarantees of fair adjudication honoring the bedrock principle that the accused is innocent until proven guilty. The result has been a lack of rational justice in our pretrial justice system, where clearly dangerous defendants or those who pose substantial flight risks can buy their way out of jail if they have access to the money required to do so. Large numbers of poorer defendants who are neither dangerous nor flight risks are held in jail simply for lack of money, with substantial harm done to them and their families, while taxpayers foot the bills for housing, feeding, guarding, medicating, and caring for them.
Our nation is now experiencing a significant wave of reform of that dysfunctional system. Having been deeply involved in New Mexico’s reforms in recent years, I have become convinced that, although it is important to have broad support for those efforts in government and in the society at large, it is critical that judges from all levels of the judiciary take the responsibility of leadership. I will share our own experience in New Mexico as a case in point.
State v. Brown, 2014-NMSC-038
Neither the New Mexico courts nor anyone else in New Mexico had taken any meaningful steps toward bail reform until the New Mexico Supreme Court faced the realities of our money-based pretrial system in State v. Brown, 2014-NMSC-038. This was the first bail appeal opinion from our court in decades. The more we dug into the issues, the more concerned we became with what we saw.
Although Brown created no new law, it became the most significant and comprehensive bail opinion in the history of our court. Going all the way back to medieval England, Brown traced how New Mexico and the rest of our country historically developed a money-for-freedom system that was neither principled nor practical.
In reviewing the development of the money system, we also became more aware of the growing pretrial justice reform movement in this country and the concrete reform efforts that other jurisdictions increasingly have been undertaking in recent years. We were faced with the inescapable reality that the New Mexico justice system had become overly dependent on money-based release and detention decisions. This system was to the detriment of public safety and the administration of equal justice under law.
We realized then that we had to do more than to decry the injustices we saw. We had the obligation to try to correct them.
Active Reform Efforts in New Mexico
Shortly after our 2014 decision in Brown, following the New Jersey Supreme Court’s example, we created a broad-based task force, the New Mexico Supreme Court’s Ad Hoc Pretrial Release Committee, to assess the pretrial justice system in the state. The committee was to make recommendations on measures needed to bring the system into compliance with existing law and to recommend needed changes in practices, rules, statutes, and state constitutional provisions. The committee included judges from all levels of our courts and also included representatives of all other relevant participants in the criminal justice system, both to give those interests a voice and to give our court the benefit of their perspectives and experience. We also appointed two representatives of the bail bond industry, including the president of the state bail agents’ association.
With the assistance of the committee’s two years of work, and with significant opposition and obstacles, we took the following actions.
Amending New Mexico’s Constitution
One of the most important recommendations was to reform antiquated bail provisions in the New Mexico Constitution that, like the majority of state constitutions, textually guaranteed the right to get out of jail before trial to virtually all defendants, except those in capital cases “where the proof is evident or the presumption great.” The ability of a truly dangerous defendant to post bail bond did nothing to protect victims, witnesses, police officers, or anyone else from injury or death. Not only did the existence of a bond not deter a defendant from dangerous conduct, neither the released defendant nor a bondsman could lose a penny if the defendant committed new crimes, no matter how horrible, while out on bond. The reoffending defendant often was able to get out of jail again simply by posting a new bond on the new crimes. In this way, the old money-for-freedom guarantee endangered our communities.
The old money-for-freedom guarantee also resulted in packing our jails with low-risk defendants who posed no real threat to community safety but who did not have enough money to post what some might view as a modest bond. In addition to the serious impact on the lives of low-risk defendants and their families, this imposed enormous costs on taxpayers who had to pay for housing, guarding, feeding, and caring for people who did not need to be locked up.
Judges who honored the previous constitutional guarantee had to permit release on bail for defendants who predictably would prey on others—incurring the wrath of those who did not understand that judges must honor the law even when they believe the law should be changed. Judges who misused bond setting to try to ensure detention instead of return to court after release, as was often the case in New Mexico and in courtrooms throughout the country, were violating both the rights of the defendant and their own judicial oaths to uphold the law as it was written. This was all done without the procedural safeguards that should be required for outright denial of pretrial release.
The New Mexico Supreme Court took the lead in drafting a proposed constitutional amendment to replace the theoretically near-absolute constitutional right to bail with new provisions empowering judges. These provisions allowed judges to deny release on a clear and convincing showing of dangerousness or flight risk while guaranteeing that no person should be jailed pretrial simply for lack of money. With the support of a broad base of diverse statewide interests to counter the massive opposition by the commercial bail industry, a legislatively altered version of the amendment was approved by strong majorities of both chambers of the legislature. New Mexico voters approved the changes in the November 2016 general election by a margin of 87 percent to 13 percent.
Amending New Mexico Court Rules
Constitutional language, of course, paints with broad strokes and sets forth basic concepts that must be given effect by more particularized statutes, court rules, and judicial precedents. Under the New Mexico Constitution, it is the New Mexico Supreme Court, rather than the legislature, that has the ultimate authority and responsibility for promulgating court rules, including rules relating to bail and other judicial procedures. The court, with the input of the committee, promulgated comprehensive new procedural rules addressing all aspects of pretrial release and detention. The rules, effective as of July 1, 2017, can be accessed at https://nmcourts.gov/court-rules-for-pretrial-release-and-detention.aspx.
Among the changes incorporated in these new rules are:
1. Abolishing all fixed monetary bail schedules in favor of early release of minor offenders and individual determinations of others, including use of validated risk assessment instruments. We are experimenting with a centralized risk assessment program to provide information to courts throughout the state both for early release decisions in low-risk cases and for judicial determinations in more serious cases. Larger districts that have the resources to provide other non-money-based programs will be able to do so as well.
2. Minimizing the requirement of monetary bail bonds. While we have not precluded the possibility of money bail, the new rules are written to help assure that we minimize its worst effects, providing a presumption of releasability on nonfinancial conditions, requiring written findings when any financial security at all is required, and providing procedures for assessing and reviewing an individual’s ability to meet financial conditions. Our experience so far has shown that the use of money bail has dramatically decreased.
3. Imposing stringent deadlines for release and initial release and detention decisions and for appellate review.
4. Providing more robust review and revocation procedures for defendants who commit post-release crimes or otherwise refuse to abide by conditions of release.
Educating Judges, Criminal Justice Partners, and the Community
The New Mexico judiciary, with participation from all levels of courts, took the lead in presenting robust new judicial education programs to educate our judges on our new processes and concepts through a combination of seminars, webcasts, video-on-demand, and written materials.
We also are engaged in education efforts for criminal justice partners, the media, and the citizens of the state to help them understand both the whats and the whys of the transition from a money-based to an evidence-based release and detention system. Justices, judges, and administrators have met with officeholders, media representatives, and community groups in many different contexts to provide information about both New Mexico and national efforts. We have submitted op-ed pieces where they would be helpful. Our state administrative office of the courts has set up web pages with resources on bail reform that are freshened regularly with current developments.1
New Mexico justices and judges have been active participants in regular lunchtime meetings of our state bar association’s Bench-Bar-Media Committee. The meetings typically involve individual or group discussion leaders who share information and answer questions regarding areas of potential conflict and confusion on a range of legal and journalistic topics. In the several years of our bail reform activities, the discussions and materials often have focused on bail reform issues and have led to better mutual understandings of the issues, as well as more cordial personal relationships.
Countering Anti-Reform Efforts
The commercial bail industry was a formidable force in opposing meaningful bail reform. In New Mexico, the industry fought reform every step of the way. Although historically the industry fares best with the legislature in anti-reform efforts, they were unable to stop the constitutional amendment from making it through the New Mexico legislature for several reasons. First, the amendment had broad support from a multitude of vocal interests we had brought into the process of studying and supporting reform. Second, the amendment achieved diverse support by seeking to correct both of the worst consequences of using access to money as the controlling consideration in pretrial release decisions—releasing dangerous offenders because they could buy a bond and jailing poorer, low-risk defendants because they could not. And third, pre-legislative efforts at media education resulted in substantial editorial support and analytical coverage, particularly helpful in unwinding backroom deals and other efforts to keep the reforms from being brought to the floors of the legislative chambers for public votes on the merits.
The industry also filed a federal lawsuit against all justices of the New Mexico Supreme Court and the chief judges of our two largest courts. The industry has not been successful in that litigation, including dismissal of the suit for failure to state a justiciable claim and imposition of sanctions for filing groundless litigation, and has appealed that adverse decision.
These kinds of meritless lawsuits are part of a vigorous and deceptive public media campaign decrying the nonmonetary release of unsavory defendants that has been somewhat successful with the nonanalytical processes of local television news, although less so with print journalists. Judges and judicial employees who were not involved in particular cases met with and spoke to the media and legislators about the larger issues involved. While the industry’s media efforts were intended to provide public pressure for legislative efforts to roll back bail reform, the actual results in the legislature have been spectacularly unsuccessful. In the recently completed 2018 legislative session, despite the sound and fury of the industry’s efforts, the rollback legislation introduced by the industry’s small minority of supporting legislators ultimately signified nothing, with not a single one of the anti-reform bills making it onto the floor of either chamber.
Pretrial justice reform is not easy. It is clear that meaningful, long-range reform will take both time and sustained effort to accomplish. The oppositional efforts are certainly one significant reason for the difficulty of achieving and maintaining reform.
But perhaps the most serious obstacle to reform is the inertia and resistance to change that results from the familiarity of the money-for-freedom system, both in the justice system and in the community at large. Over time, our society has unthinkingly accepted the practice of releasing accused defendants from jail before their trials if they can come up with bail money and detaining them if they cannot. It seems as inevitable as the sun rising in the East each morning. Challenges to the underlying theoretical justification of those money-based practices are met with resistance and with difficulty in looking at the system with fresh eyes.
In order to achieve public support for long-lasting reform, it will be important to work toward a new public perception of the principled and practical considerations that call for bail reform to provide both better public safety and a fairer justice system. Judges at all levels of the judiciary must take a leading role in that process, as they are doing now in exemplary fashion in jurisdictions throughout the country. As our New Mexico experience has demonstrated, we can do this if we make the commitment to be participants in the needed changes.
To do what is right, we must continually reexamine bail practices that make no sense and have the courage to correct what is wrong. In a justice system committed to the concept that the kind of justice our courts provide should not depend on a party’s wealth or poverty and all should stand equally before the bar of justice, we must be willing to assess whether what we are doing lives up to those ideals. If justice is not available to all, it is axiomatic that true justice cannot be provided to anyone. And who better to communicate those principles to the public and to their elected representatives than the judges who have both the experience in the justice system and the ultimate responsibility to see that justice is done?
Over a half-century ago, a unanimous U.S. Supreme Court mandated the most significant criminal justice reform in our nation’s history when it held in Gideon v. Wainwright2 that our Constitution will not permit an accused to be jailed post-trial for inability to afford a lawyer. The current bail reform movement, seeking to ensure that pretrial release and detention decisions are based on evidence instead of wealth, is clearly the most important criminal justice reform since Gideon.
There is no greater advancement our courts and our society now can make in the pursuit of justice in America than the clear path that lies before us toward reforming our antiquated, unprincipled, and dangerous money bail system. And we judges should lead the way. n
2. 372 U.S. 335 (1963).