Voters this year will decide whether to amend the state Constitution and change the way New Mexico’s bail bond system works.
Jeff Proctor is an independent journalist who has been following the issue for The Justice Project, published by New Mexico In Depth. He spoke with KUNM’s Elaine Baumgartel.
KUNM: This constitutional amendment that is on the ballot this year, it would do a couple of things, tell us about that.
Proctor: Basically it would try to remove money as the primary factor by which people either stay in jail or not pending their trials. One thing it would do is allow judges to hold people in jail—not offer them any kind of bail at all—who are provably dangerous. The other thing it would do is forbid judges from holding people who are not dangerous in jail just because they don’t have money.
KUNM: Why did folks like the ACLU-New Mexico and the Criminal Defense Lawyers Association say something like this is a good idea? What kinds of problems do they say this amendment would address?
Proctor: Number one, there is a problem in the state with repeat offenders getting out of jail on bond, just because their families or loved ones have access to money, and committing new crimes. So that’s a public safety issue that everybody agreed on. On the other end of the spectrum the ACLU, criminal defense lawyers and others recognize what is a very fundamental problem with the cash bail system, which is its unfairness. People who don’t have money stay in jail on minor crimes and that has huge consequences on people’s lives. The lose jobs, lose children, lose their housing, all of those kinds of things, while people who do have money and are charged with minor crimes get to go home and be with those families while their cases are pending.
KUNM: And we are talking about people who’ve been charged with crimes but who are yet to have been convicted?
Proctor: That’s right, this is a fundamental principle in the justice system that we are all innocent until proven guilty.
KUNM: What about the bail bondsmen? What did that industry have to say about this proposal?
Proctor: The take of the bail bondsmen has been from the very beginning that this is not a system that needs fixing. Their position is that they provide a valuable service to the community. They hold people responsible financially for coming back to court. And when those people don’t come back to court the bail bondsmen go and get them and bring them back to court. Their take is that the system doesn’t need fixing at all. They did have an additional concern with the way the amendment was originally written, that basically anyone could come in and say, ‘I’m poor,’ and a judge would then be forced to not give them a bond and release them some other way.
KUNM: As you mentioned, the way that the amendment was originally written, during this year’s legislative session the original text of the amendment was changed a bit, it was amended before it was passed by lawmakers, and some of the organizations that originally supported it and wanted to see it happen withdrew their support. What were the changes and why did folks like the ACLU say, ‘we’re not going to support this anymore’?
Proctor: The bail bonds industry won a concession during the legislative session. There’s now some language baked into the constitutional amendment that would allow judges to force defendants to prove that they’re poor. Some of these groups—the ACLU, the Criminal Defense Lawyers Association—thought that that placed an undue burden on poor people. Basically, that’s ‘walk into court and prove to me that you don’t have the money to approve a bail.’ Those groups were already concerned with the other side of the amendment, the preventative detention piece of this. Their concern there was that that could be abused, that prosecutors could walk into court and say everybody’s dangerous, nobody should get a bail, everyone stays in jail before their trial.
KUNM: It’s going to be interesting to see what happens.
Proctor: It will be interesting. This is something that probably will pass. It’s also interesting how quiet things have been about this constitutional amendment in the months leading up to it. There’s been no advertising, no polling, no money spent on either side of the aisle with this.