Catch & Release: Myth vs. Reality

A Prosecutors Purpose

How many times have we heard the term “catch and release” bandied about especially in the last few months? The term is usually used in the context of getting tough on crime and one person or another is quick to proclaim that they will stop the practice of catch and release.

The truth of the matter is that no one person can change the practice no matter how much they say they can.

In 2015, New Mexico Supreme Court Justice Charles Daniels and attorney Artie Pepin convened a pre-trial release committee consisting of prosecutors, defense attorneys, judges, jail and detention centers, the bail industry and legislative representatives to review pre-trial release law and practice and to recommend changes.

Out of those meetings came a Constitutional Amendment on bail reform. The purpose of the amendment was to advance equality and eliminate defendants from being held in jail simply because they could not afford bail otherwise referred to as wealth-based incarceration. The rules are also intended to protect individual rights and ensure public safety.

The Constitutional Amendment was unanimously recommended by the Legislature and put to the voters in 2016. An overwhelming 87 percent of voters voted to pass the amendment and the rules became effective in 2017. Any changes and rule revisions to reform bail reform are subject to the Supreme Court’s review and approval of the voters.

In New Mexico, those charged with a misdemeanor cannot be held without a hearing and conditions of release (non-monetary) which must be set within three days by a judge. For those charged with a felony, it is incumbent upon prosecutors to file a detention request in district court and to prove by clear and convincing evidence dangerousness and flight risk to hold a defendant, and that no release conditions will reasonably protect the safety of any other person or the community.

If the judge feels evidence doesn’t meet the burden, the defendant is released on conditions set by a district court judge whose determination is final subject to appeal by either party. However, because of this constitutional authority, prosecutors can request and district judges have the authority to order pretrial detention of dangerous defendants, no matter how much money they can pay for a bond.

Judges also have the explicit authority to revoke pretrial release for defendants who commit new crimes or violate other restrictions while released. The problem we, as prosecutors, have in this district, is that prior to a pre-trial detention hearing we must also have a preliminary hearing.  Both the preliminary hearing and the hearing for the pre-trial detention motion require extensive time and preparation.

The time and preparation required becomes like a second and third trial and we simply don’t have the resources to do this in all the cases we feel it necessary. The result being that we must pick the cases for which we feel it is most necessary to hold a defendant prior to the trial.

With early release being based on the assessment of the risk of flight and dangerousness — bail reform in New Mexico being modeled after the Federal Bail Reform Act of 1984 and the Bail Reform Act of 1966 before that — there are plenty of arguments on both sides.

Some see the reform as a good thing and others believe with contradicting evidence, that crime rates have risen as a result. As prosecutors, our mandate is to uphold the laws of the state of New Mexico. Our role is not to join the political fray and argue for or against. I can say though that the law, as it presently stands, creates unwieldy demands on our limited staff and leads to unrealistic expectations on the part of the communities we serve.

My constituents see people charged with crimes on the streets before trial and want to know why they are not in jail. In most, but not all, cases the answer is because the people of New Mexico in overwhelming majority voted for the bail reform that makes it possible. The cries for reform are loud and clear.

The governor pushed for reform in the last legislative session and asked the Legislature to make meaningful improvements but that didn’t happen. The New Mexico Supreme Court can make improvements but thus far has not.

In the 13th Judicial District, every judge is different, and has different standards. However, I am proud to say that for the most part, we’ve been successful when arguing for pre-trial detention as our judges understand that if we are arguing for pre-trial detention there is a valid reason.

In the meantime, it seems as though any meaningful reform will have to come from the voters.

 

(Barbara Romo is district attorney for the 13th Judicial District.)