As the debate over so-called bail “reform” intensifies in New Mexico, lawmakers need to tread very carefully before buying into any proposals that would, ultimately, threaten public safety.
The fact is that our current system of commercial bail serves, protects and works. Numerous studies have found that commercial bail is the most effective way to ensure that criminal defendants actually show up for trial. Surety bail protects the public and it protects the rights of criminal defendants, particularly individuals living in poverty.
Bail is a right enshrined in our constitution and a cornerstone of our criminal justice system. There is absolutely no good public policy reason for eliminating this right.
The Supreme Court’s Ad Hoc Committee is set to recommend a constitutional amendment to eliminate bail. This is not reform. It is a “get out of jail free card” that would allow violent persons to walk out of jail on low bonds or on a simple promise to return for their court date.
It is a plan crafted mostly in secret by an ad hoc committee appointed by the Supreme Court of New Mexico. I challenge any member of the public to identify who is serving on this panel; when or where they have met; or what records, studies or white papers they have considered as they head down this path.
It appears that the secret committee is going to recommend the state shift to the still new and unproven check-box system of risk-assessments, based primarily on demographic factors. But the jury is still out on whether these reforms have actually delivered the promised results in other jurisdictions.
For example, while Washington, D.C., is pointed to as a model jurisdiction by some, and New York City is pointed to as a broken jurisdiction, the Washington “model” actually results in more pretrial detention than in unreformed New York City.
In Washington, a full 15 percent of arrestees are detained pending trial. In New York City, a full 86 percent of people do not have bail set at all and are released, meaning only 14 percent are subject to the possibility of pretrial detention. And of the 14 percent detained, some significant portion post their bail and are released. Like New York City, if the Washington model is adopted, New Mexico will see an increase in jail populations.
In addition, there is a movement to end mass incarceration because it increases crime at the exact time the Ad Hoc Committee is moving to increase incarceration. I would be interested in understanding how a plan of locking people up and throwing away the key squares with University of Michigan professor Michael Mueller-Smith’s work that proved that any benefit of incarceration is offset by turning offenders into career criminals.
The shift to supervision by the state, which will be necessary if monetary bail is eliminated, will also not work and will be costly to the state, despite arguments that we will then keep the “right” people in jail as lesser cost. Officials in Mesa County, Colo., “reformed” their bail system to rely on so-called evidence-based practices, which leads to the release of more violent offenders while stepping up supervision.
Yet 21.5 percent of defendants in that county committed a new crime while under supervision during the 2014 review period. In addition, arrest warrants in felony cases for those who did not show up for court in Mesa County have increased by 75.5 percent over the last five years.
The bail system — as envisioned by the U.S. and New Mexico constitutions — works. The reality of the Walter Brown decision is that judges cannot just use the criminal charge to set bond, but that does not mean that bonds with financial conditions should simply be abandoned because judges need to consider something more than the charge. This does not mean that we also need to take the radical step of changing the state constitution.
While our current bail system requires constant study and review, local jurisdictions cannot provide the vital role that bail agents do. The challenge is that poor defendants in some cases do not have access to bail agents. This does not mean that we need to eliminate surety bail.
States spend billions to provide attorneys to the indigent, but when it comes to providing any form of public bail insurance, they look the other way. This makes absolutely no sense.
The American Bail Coalition is working across the country to educate policymakers about these services because together, we can ensure public safety and defendants’ rights.
Jeffrey Clayton is policy director of the American Bail Coalition in Lakewood, Colo.