Bail reform — if we can do it

There are more people in New Mexico county jails than in our state prisons, and some of them stay there for a long time. In some cases, it’s a relief that they are locked up. In others, it’s a tragic waste of their lives and a pointless expense for taxpayers.

A report from the Association of Counties puts the total adult jail population at 7,030 males and 1,405 females as of June 30, 2013, while the state prison population was 6,043 males and 652 females. The report says the median length of stay for unsentenced inmates in 2010 was 147 days.

Conditions are not so good, we hear. Only six are accredited detention facilities. It’s hard to imagine small cash-strapped jails offering high-quality mental health services, which many inmates need badly. The most notorious case – but not the only one — was Stephen Slevins, who was arrested in Dona Ana County for DWI and inexplicably locked in solitary for 22 months. He eventually received a settlement of $15.5 million but still reportedly suffers mental disability as a result of his ordeal.

The regulation of bail is ripe for reform. Sen. Peter Wirth, D-Santa Fe, announced that he will introduce a constitional amendment regarding the bail process. The proposal has been endorsed by the State Supreme Court.

But – pardon my skepticism — if the amendment cuts into the lucrative business of bail bonding, I don’t give it much of a chance.

The proposed amendment is not yet written. As discussed, it will address two concerns.

First, it will give judges authority to keep dangerous criminals in jail with no possibility of bail. Second, it will allow judges to let non-dangerous defendants who do not pose a flight risk out of jail if they can’t afford to post bond. So we will stop filling the jails with people who haven’t been convicted of anything and who don’t need to be there.

Regarding the first issue, The U.S. Constitution (Bill of Rights, Amendment 8) guarantees that “excessive bail” shall not be required. The New Mexico constitution repeats the guarantee (Bill of Rights, Article 2, Section 13) but carves out a few exceptions, giving judges discretion for defendants previously convicted of other felonies in New Mexico. These exceptions allow for appeals by the defendants.

Criminal defense attorneys will cry foul about allowing judges to prohibit bail entirely, no matter how violent the crime. It’s a serious argument. Our justice system follows the principle that the accused is innocent until proven guilty, and the purpose of bail is only to assure that the defendant will show up for trial.

On the other issue, there is no principle to be defended – just money from an industry that understands politics. When you contract with a bail bondsman, the bondsman guarantees the full amount of your bail, but you pay the bondsman ten percent of that amount – even if you are later found innocent or the charges are dismissed. If defendants with no money are able to go home without posting bond, oh my goodness! The bail bondsmen will lose business!

I frequently remind my readers and my long-suffering friends that New Mexico is the state that couldn’t pass fireworks restrictions in a drought, because burning down the forests is less of a concern than reducing the profits of the fireworks industry. We (our legislature, that is) couldn’t pass an interest rate cap on payday lending. We can’t pass much of anything that offends any well organized business interest.

A constitutional amendment must go through both houses of the legislature before it gets to the voters. It would be thrilling to see our legislators show the bail bond industry that its profit is not the paramount concern in our state’s criminal justice policy. But I’m not holding my breath.

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