Walt Rubel Commentary: Court, governor at odds on bail reform

​The state Supreme Court has come out against proposed reform to the bail system, setting up a potential clash with Gov. Michelle Lujan Grisham if she is re-elected in November.

During a public safety press conference in January, prior to this year’s legislative session, Lujan Grisham called for changes to make it more likely that those accused of serious crimes would be held in jail prior to their trials.

“This legislation asks our court to look seriously at individuals with violent histories before releasing them, sending a message to others that there are consequences for violent acts,” said the bill’s sponsor, Rep. Marion Matthews, D-Albuquerque, who attended the press conference.

Under current law, judges presume that a defendant should be released prior to trial unless the state can provide evidence to override that presumption. The governor wants to flip that, and put the burden of evidence on the defendant.

The state Supreme Court has opposed the change, and cited a study last week conducted by the University of New Mexico to support its case.

“...These proposals do not accurately target the small fraction of defendants who will be charged with new, serious crimes if released pretrial. Instead, they will cast a wide net, recommending detention for a large number of defendants who would not receive any new charges during the pretrial period,” the study said.

To be more specific, the study estimates that 20 people who would not have committed a crime would be jailed for every one person who does commit a crime. The court sees those numbers as supporting its argument. But, I suspect a large number of New Mexicans would take that tradeoff, reasoning that the 20 people may not have been convicted yet, but they all did something to land in jail. Better that than another crime.

Matthews’ bill would have only applied to those charged with violent crimes or who used a gun while committing a crime.  

The study looked at the cases of 15,134 people charged with felonies from July 2017 to June 2021, and attempted to determine how many would have been detained pending trial under the conditions of the proposed bill. 

It found that, “at most, 5 percent” are charged with a new violent felony, while the false positive rate would be between 71 to 90 percent. Once again, those are numbers that I suspect a lot of people can live with, especially as the crime rate continues to increase.

The problem with the old cash bond system was that it discriminated against the poor. That was wrong. But the court does need to discriminate against the dangerous. 

Obviously, there will always be cases where a defendant out on bail commits another crime. The only way to prevent that is to lock everyone up for weeks or months leading to trial, which goes against the concept of innocent until proven guilty. But we also need to protect our residents from violent predators.

It’s a balancing act. And it doesn’t help that our courts are overworked and our public defenders are understaffed and underpaid. But a rising crime rate would seem to suggest that the balance on pretrial detention may need to be adjusted when it comes to violent crimes.


Walter Rubel can be reached at [email protected].

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