Bail reforms take hold in New Mexico as legal culture shifts

June 5, 2017 GMT

SANTA FE, N.M. (AP) — New Mexico’s judiciary took final steps Monday in overhauling its bail and pretrial detention system to ensure clearly dangerous defendants remain incarcerated before trial and that nonviolent people do not languish in jail just because they cannot afford bail.

The Supreme Court issued comprehensive procedures for district, metropolitan, magistrate, municipal and appellate courts to determine if and when defendants can be released.


New Mexico has joined a growing number of states in adopting risk-based approaches to releasing defendants that put less emphasis on financial assurances, after voters approved a constitutional amendment in November allowing judges to deny bail to defendants considered extremely dangerous. The constitutional amendment also granted pretrial release to those who are not considered a threat but remain in jail because they can’t afford bail.

The procedures go into effect July 1 for new and pending cases.

“The old system of basing pretrial release and detention decisions on who could come up with the money to buy his or her way out of jail, instead of on evidence of individual risk of dangerousness or flight, served neither community safety nor constitutional rights of accused citizens,” Supreme Court Justice Charles Daniels said.

New Mexico’s bail reforms are modeled after recent changes in New Jersey and an older legal overhaul in Washington, D.C. To deny bail, courts have to establish “clear and convincing evidence” that criminal suspects represent a danger and should stay locked up until trial.

Prosecutors and defense attorneys already are clashing over how to apply that principle. Bernalillo County District Attorney Raul Torrez in April complained of burdensome evidentiary requirements before the New Mexico Supreme Court in April, after his motions to deny bail were rejected by other courts for suspects linked to a series of armed robberies and the shooting of a pregnant woman.

The Supreme Court agreed with Torrez that witness testimony should not always be necessary to deny bail, while promising to publish more detailed written guidance. That guidance has not yet been issued.

New Mexico had the highest jail incarceration rate in the country of 341 per 100,000 residents in 2013 — the latest year of federal data tracking all local jail populations.


The jail population has decreased significantly since then for New Mexico’s largest county, which includes Albuquerque, under expedited procedures for plea agreements and evidentiary hearings. Bernalillo County also is launching a new risk assessment tool this month to help judges determine whether people suspected of committing crimes should be released on their own recognizance.

The new court rules involve a profound shift in legal culture and mindset, said Grace Philips, general counsel for the New Mexico Association of Counties.

“As a state and a justice system, we have for many years relied heavily on the bail bond system — cash for freedom,” she said.