Bail reform — What is this all about?

Here in New Mexico and around the nation we have been undergoing something called “bail reform” for many years. In fact, as early as 1966, our country has had an ongoing movement to reform bail, so it is nothing really new.

The purpose of these reforms is to improve our justice system by assuring court appearances by those who are charged with a crime and maximizing the safety of communities. The law of the land has long recognized that most people who are arrested are entitled to be released from custody while awaiting trial.

Some may dispute this, but from my perspective our journey with bail reform in New Mexico began to accelerate in 2014 with a New Mexico Supreme Court decision titled State of New Mexico v. Walter Ernest Brown.

In this unanimous, 46-page ruling, the court laid out an extensive history of bail from its origins in Europe predating even the Magna Carta. I will not retell that history here, but instead will attempt to provide you with some insight.

The United States Constitution and the New Mexico Constitution both address bail. The U.S. Constitution’s language is in the Bill of Rights in the Eighth Amendment and is quite succinct, “Excessive bail shall not be required …”

The New Mexico Constitution contains more deliberate language in Section 13 of our state’s Bill of Rights. “All persons shall, before conviction, be bailable by sufficient sureties …” Since statehood, this provision has guaranteed that people charged with a crime have a right to be released pretrial, except in limited instances.

Voters approved changes to this constitutional provision in 2016 by an overwhelming 87 percent, implementing significant reforms in New Mexico’s pretrial justice system. District courts now have authority to deny bail for felony defendants who are too dangerous for release while awaiting trial. The voter-approved constitutional amendment further dictates that a person who is not dangerous or a flight risk cannot be held in jail pretrial solely because they cannot afford money-based bail conditions.

OK — so why do we even have bail? Black’s Law Dictionary defines bail as: “A security such as cash or a bond; especially required by a court for the release of a prisoner who must appear in court a future time.”

Within this definition we learn why we have bail. Courts impose bail, which is the wide range of restrictions and conditions of release on defendants, to ensure a person will return to court. Under decades-old state and federal law, judges are to impose the least restrictive conditions of release needed to assure a defendant will return to court.

When an individual is arrested, a judge reviews the charges and then sets conditions of release pending a final disposition of the charged offense. In keeping with our state constitution, an individual not charged with a felony and who is not considered a flight risk, will likely be released on their own recognizance.

If the individual has a history of failing to appear in court, a judge may require bail in the form of money or property, but only after reasoning through non-monetary measures such as periodic check-ins with court pre-trial services, home arrest, curfews, electronic ankle monitors and testing for drug and alcohol use.

If a judge determines that non-monetary conditions of release will be insufficient to ensure a defendant’s return to court, the judge may impose financial requirements such as depositing cash with the court or obtaining a money bond. However, the judge can do that only after providing “written findings of the particularized reasons” to substantiate the need to do this.

The details of the bail process are not outlined in our state’s constitution or in state statute but rather in rules of criminal procedure, which are approved by the New Mexico Supreme Court. All trial courts — District, Metropolitan, Magistrate and Municipal Courts — are bound by these rules.

OK judge, what about the person who is released pretrial and reoffends or doesn’t show up to court? To some, this has earned the title of “revolving-door justice.” In the words of one of the public defenders in Valencia County, “Then they have voted with their feet.”

When that happens, a court will issue a warrant for failure to appear or for failure to comply with conditions of release. Once the person is rearrested or upon their surrender to authorities, a judge makes a new decision about conditions of release or bail, up to and including revoking those conditions and detaining the person in jail until trial.

None of this process happens in a vacuum. At all stages, the defendant continues to have the right of due process. This is really important because, as I have written in previous columns, these rights are not “criminal” rights, they are our individual rights — rights enshrined in the U.S. Constitution under the 14th Amendment and in the New Mexico Constitution under Article II, Section 18.

I close by saying that everything I mentioned above is in constant evaluation. As a state, we are actively learning from our experiences with the recent constitutional amendment, revisions to court procedural rules and from other states that, like New Mexico, have implemented bail reforms.

It is my hope that in this brief column, you find some insight into a complicated process that is critical for a fair and effective justice system.

(Magistrate Judge John R. Chavez is the magistrate in Belen. He is a native of Valencia County and is a retired U.S. Army colonel.)