How A State Bail Reform Measure Lost The Support Of Bail Reformers

New Mexicans will vote on a constitutional amendment next month that would change the state’s bail system ― a system that often keeps poor defendants in jail for extended periods while they await trial, while wealthier people walk free almost immediately.

Under the current system, judges can set a defendant’s bail high to keep him or her in custody. But this doesn’t guarantee that a truly dangerous defendant won’t be able to bail out, and others remain locked up simply because they can’t afford bail.

New Mexico’s Constitutional Amendment 1 would give judges the authority to deny bail when prosecutors provide “clear and convincing evidence” that a defendant is too dangerous to be out while awaiting trial. It also explicitly prohibits the detention of defendants who aren’t deemed dangerous or a flight risk “solely because of financial inability” to pay bail.

On its face, the constitutional amendment appears to be in line with efforts to reform or eliminate the cash bail system. But many reformers question how much it would really accomplish. They say the measure protects for-profit bail bond companies and leaves the interpretation of protections for poor defendants up to judges ― the same judges who have made cash bail standard practice, despite questions about its legality.

“If left to their own devices, I have seen no evidence that the people who have constructed and have been profiting from and have grown used to this system are all of a sudden going to create a much more fair system for the poor,” said Alec Karakatsanis, founder of Civil Rights Corps, a nonprofit that has mounted a number of legal challenges to money bail schemes.

Reforming the bail system has become part of the broader campaign to overhaul criminal justice policies that disproportionately disadvantage people of color and the poor. New Mexico’s initiative would follow statewide efforts in Colorado, Illinois, Kentucky, New Jersey and Oregon.

Bail reformers say the very premise of requiring a defendant to pay for his or her freedom violates the promise of equal access to justice under the U.S. Constitution and conflicts with federal standards that require judges to impose the least restrictive release conditions that assure community safety and a defendant’s return to court. Bail also forces many people facing nonviolent or low-level charges to remain in jail when they could be released.

The cash bail system has contributed to jail overcrowding, with an increasing number of people spending longer periods behind bars without being convicted of a crime. It costs U.S. taxpayers an estimated $9 billion each year to incarcerate people who haven’t been convicted.

Here’s how the cash bail system typically works in New Mexico and around the country: After a person is arrested and booked into jail, a judge or other judicial officer assigns a bond amount, which can range from $100 to hundreds of thousands of dollars or more, depending on the alleged crime. Many courts assign preset bond amounts based on the charge, without considering an individual’s ability to pay or whether he or she is dangerous or poses a flight risk. (A bond is the money or other assets that a defendant must provide in order to make bail.)

Wealthier defendants may end up going free almost immediately, on the condition that they’ll forfeit their bond money permanently if they fail to appear in court. Other defendants secure release through for-profit bail bond companies, which charge a nonrefundable premium (usually 10 percent of the bond) that can be paid over time.

There’s lots of money to be made off of people who could not otherwise pay for their freedom, and the quest for profits has led to some troubling business practices. Earlier this year, VICE documented a bail bondsman’s marketing efforts in Baltimore, which included handing out free merchandise in poor neighborhoods and opening an office near one of the most dangerous intersections in the city. Critics say bail bonds companies exploit crime and poverty to boost their bottom line, and in fact have a vested interest in preserving and further normalizing them.

But in many cases, poorer defendants can’t post a bail of any amount, so they stay in jail until trial. These defendants may be left to languish in jail for weeks, months or even years.

A recent county review of a detention center in Albuquerque, New Mexico, illustrates the problems with this type of bail system. As of the end of August, the facility was holding a total of 74 people, or about 16 percent of all bondable inmates, on bond amounts of $100 or less. More than 100 others were being held on bonds between $101 and $500. Of all bondable inmates, more than 60 percent were being held on bonds of $2,000 or less.

In 2010, unsentenced New Mexico inmates stayed in jail for a median of 147 days, according to a report from the New Mexico Association of Counties ― an increase from 112 days in 2003. People arrested on a misdemeanor stayed behind bars for a median of 80 days in 2010, while people booked on probation violations but not yet been sentenced stayed a median of 70 days. The length of jail stays increased substantially for inmates with documented mental health problems, the report found.

Beyond the inherent hazards of confinement, incarceration can lead to a cascading set of consequences. If defendants can’t show up to work, they may get fired and lose access to benefits. If they receive public assistance for housing, that can get taken away. They can fall behind on house or car payments, or be cut off from health care or family support networks ― whether or not they are guilty and regardless of the crime they’re charged with. All of those problems can increase the odds of future criminal behavior and incarceration. In some cases, just getting booked into jail ends up being fatal.

Some defendants end up serving the full sentence for a charge before the trial is completed, and are given the option to simply plead guilty and go free. Others, facing the prospect of indefinite detention, may feel pressured to plead guilty much earlier in the process. While this may give a defendant their freedom, it can cost them a conviction for a crime they may not have committed.

The Justice Department took a stand against this type of bail system earlier this year, calling the practice “unconstitutional” and “bad public policy.”

“Bail practices that do not account for indigence result in the unnecessary incarceration of numerous individuals who are presumed innocent,” the Justice Department wrote in an amicus brief supporting a lawsuit that challenged cash bail in Georgia, one of many filed around the country.

New Mexico’s constitutional amendment is a response to a 2014 state Supreme Court decision that criticized the widespread use of cash bail, even when less restrictive conditions of release would have been appropriate to protect the community and ensure that defendants made it to their court date. As part of that ruling, the court set up an advisory committee of judges, prosecutors, defense attorneys and bondsmen to review the state’s bail practices and present alternatives.

The panel suggested a constitutional amendment to address the issue, which New Mexico Supreme Court Chief Justice Charles Daniels drafted and sent to the state legislature for approval, according to state laws on amending the constitution.

Reform advocates in New Mexico have long been seeking to change a judicial system that relies so heavily on cash bail ― but they are skeptical that Constitutional Amendment 1 will get to the heart of the problem.

“To achieve real bail reform, we believe that the bonding industry needs to be eliminated,” said Matthew Coyte, president of the New Mexico Criminal Defense Lawyers Association. “Our organization would prefer and advocate for a more direct way of changing the culture by creating laws that simply eliminate monetary bonds, or remove the profit incentive from the system and instead run on a system where bonds are administered by courts.”

The NMCDLA, American Civil Liberties Union of New Mexico and other groups supported an earlier version of the amendment, which passed in the state Senate. But when the legislation moved to the state House, the bail bonds industry tried to kill it with a campaign of aggressive lobbying and political contributions.

House members watered down the amendment’s protections for the poor and added language stating that defendants must be determined not to be a flight risk to be exempt from the bail requirements. Reformers worry that the definition of what makes someone a “flight risk” is vague and could be used broadly against groups like immigrants or defendants who have previously failed to appear in court.

“Particularly when it concerns a constitutional change, the instruction has to be absolutely crystal clear, and this ballot measure language is anything but,” said Peter Simonson, executive director of the ACLU of New Mexico. “We think the bail bond industry ultimately corrupted the original language in a way that opens up loopholes for the same worrisome situation to continue into the future.”

Lawmakers also introduced a process by which indigent defendants “may file a motion with the court requesting relief from the requirement to post bond.” Requiring poor defendants to file a motion to prove their poverty could mean they still end up waiting in jail, reformers argue.

Still, both chambers passed this revised version of the amendment, and voters will consider it on Nov. 8. Although there’s no public polling on the initiative, most observers ― including those who oppose it ― expect it to pass.

Reformers’ trepidation is understandable, said Daniels. Even though he was one of the most vocal proponents of the amendment, he’s unhappy that the approved version doesn’t take a stronger stance against cash bail. But the document’s ambiguity is advantageous, the judge argues, because his court will create the rules and mechanisms that ultimately determine how the constitutional changes are implemented.

When it comes to determining who has the ability to pay bail, for example, Daniels said the process could be conducted during the initial hearing to set bail. This would mean poor defendants wouldn’t have to sit in jail before filing a motion.

“As inartful as that language ended up being at the end of our amendment, the functional effect of it was to give us everything, everything that had been in our original proposal,” said Daniels. “I fully expect a couple of years from now that [bail reform groups] will be inviting me to some banquet to tell me, ‘We were wrong, you were right.’”

Although Daniels is confident that he and his colleagues will use the amendment to aggressively overhaul money bail practices, bail reformers aren’t giving him the benefit of the doubt.

“Is it possible that a great rule is created? Sure,” said Coyte. “But our organization cannot rely on a rule we haven’t seen yet to make a decision on whether we oppose the amendment or not.”

Groups like the NMCDLA and ACLU favor more sweeping alternatives to the cash bail system in which judicial officers make release decisions based on formal risk assessments conducted by pretrial experts. These holistic reviews take into account a defendant’s likelihood to jump bail or get re-arrested before trial, and provide judges with an objective analysis to consider when setting non-financial conditions of release.

A system like this is in place in Washington D.C., where it’s paired with a robust pretrial services program that monitors defendants who require supervision while awaiting trial. Between 85 and 90 percent of people arrested in the nation’s capital are released without financial conditions. Around 90 percent of defendants show up for their court dates and 91 percent make it through their trials without getting re-arrested.

But changes of this magnitude would require a more forceful campaign against the commercial bail bonds companies that profit from the current system.

And the bail bonds industry, which handles about $14 billion in bonds nationwide each year and brings in $2 billion in revenue, doesn’t seem too interested in changing. Bail bondsmen claim they save the government costs that would be incurred if someone were to skip out on a court-administered bond, because companies put up private capital to bail out their clients. And because bail bonds companies assume responsibility for ensuring that their clients appear in court, they argue it saves the state the trouble of having to hunt down anyone who absconds.

“Many of the people who are pushing the idea of amending the constitution are saying that people are in jail because they’re too poor and it’s really not true,” said Gerald Madrid, president of the Bail Bond Association of New Mexico.

“Many people are in jail because they are poor in relationships,” he added. “They have already burned Grandma and Mom and Dad and everybody down the line they’ve already taken advantage of. The family is glad they’re in jail in many of the cases because these people are abusive. They have drug problems, they’re stealing, they’re drinking and that’s why they’re in jail, more than they don’t have money.”

Despite this vastly different view of the criminal justice system and the factors that keep people behind bars, the Bail Bond Association of New Mexico has come out in support of Constitutional Amendment 1.

Reformers say this only proves their concerns are valid.

“The very reasons the bonding industry is in favor of this is why we would be against it,” said Coyte.