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Chief Public Defender says lawsuit for pretrial GPS monitoring data goes too far

Bennett Baur
Steven Hsieh
Santa Fe Reporter

District Attorney Raul Torrez has sued the 2nd Judicial Court in Albuquerque alleging officials violated the state’s Inspection of Public Records Act by refusing to turn over GPS data for two people on pretrial release. Chief Public Defender Bennett Baur says public access to this data leaves people over-exposed and over-surveilled.

BENNETT BAUR: There are privacy interests for a lot of people that are concerned here. The public interest is in effective government and scrutiny is needed so that the public can see what's going on. But not every record that's kept about an individual by the government should be available to the whole public. And unfortunately, that's what he's asking for here is that anybody that's on a monitoring device, while they're awaiting trial, would have their whereabouts completely exposed, not just to police, not just to the prosecutors, but to every member of the public. And that goes way too far.

KUNM: For someone's whereabouts to be tracked 24/7, there has to be an emotional toll. So, is there an issue regarding individual rights?

BAUR: Yeah, it really gets into an individual's right to privacy, and a couple of things that people need to remember, just because someone is accused of a crime doesn't mean they're guilty of the crime. Right? This is in the pretrial phase. And a pretty large majority of people are, not only are they never convicted of a crime, but there are a large number that are never even charged with felonies who are released on GPS monitoring.

So, we're talking about people not convicted of crimes at this point. And somehow their whereabouts are going to be monitored. But if his argument were correct, any person any member of the public, a family member and enemy of the person who's on release, anyone with just a passing interest for no reason whatsoever, would effectively be able to track their movements on a map every minute of the day.

KUNM: We have seen crime in Albuquerque explode this year. And that's the main argument from DA Torrez. But is this the best or most productive way to address the crime crisis in your opinion?

BAUR: I don't think it is. And I want to really emphasize that we all are concerned about crime in our community. We want effective policies that address the root causes and punishes those who actually commit crimes when that's necessary. But what you can't do is sort of get into big brother surveillance. And so how many freedoms are we as a community willing to give up?

KUNM: And I want to get back to your point, that these people are out on pretrial, they haven't been convicted of a crime yet. What is one thing you would like people to know about this lawsuit?

BAUR: There are convictions in probably over half of the cases of some sort. But there are many, many cases that where they're never convicted of a felony, which means that they were often mischarged or overcharged at the beginning, or the person was actually innocent.

And so, when we over-incarcerate or over-surveil people like that, often they'll end up going back into jail. So, this isn't "We will incarcerate or surveil people, and better to over than under because it doesn't really hurt things." Studies have shown that you actually increase recidivism, or you increase more criminal activity by people when you over-incarcerate when you put them in jail or put too many conditions on them. And so, it's really important that we find the proper balance.

KUNM: And lastly, is there any other way the DA could get this information without using an IPRA?

BENNET BAUR: The District Attorney has always been able to obtain pretrial services records through a judicial order or a search warrant or a stipulated protective order. I mean, there are ways when they go to court file a document and ask for them and make some threshold showing that these records are necessary for investigation.

They can get them. They can't necessarily release into the public. But that's the point is that there are methods that can be used. I don't know that they were used in this case, instead of kind of lifting the lid and so they look at only the information necessary. They basically want to blow the lid off. And so, if I were a judge, I think if this were the law that every person's movements can be tracked by all of the public, I would be reluctant to put them on monitoring.

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