N.M. chief justice defends bail reform in State of the Judiciary

Since it became law, N.M. politicians at every level have called for an erosion of a landmark legal reform in the state’s history.

New Mexico voters in 2016 overwhelmingly approved a constitutional amendment to abolish the cash bail system and left decisions about whether someone is incarcerated before trial entirely in the hands of judges. And in the past four regular legislative sessions, the amendment withstood attempts to claw back the provision, or end it all together.

“We will not relent from our commitment to establish a ‘rebuttable presumption’ to make sure that high-risk violent offenders stay behind bars before trial,” Gov. Michelle Lujan Grisham said in her State of the State address on Jan. 17.

New Mexico Supreme Court Chief Justice Shannon Bacon on Tuesday used the opportunity of the State of the Judiciary address — given once every four years — to defend bail reform and counter rhetoric alleging it made New Mexico less safe.

Any changes to the criminal legal system should include the shared values emanating from the state and federal constitutions, “that everyone accused of a crime is innocent until they are proven guilty, that we value liberty, that we value freedom,” Bacon said. “These fundamental principles are bedrock in our democracy, and are designed to curb tyranny and support a civilized society.” 

Bacon asked lawmakers to recall where the state was before voters eliminated the money bail system: When someone was accused of a crime, including those deemed the most dangerous, they were allowed to post a money bond under almost all circumstances. This resulted in most criminal defendants being free until trial, she said.

“Not only was this system unconstitutional, but it was also more dangerous because it didn’t include any analysis of danger to the public,” Bacon said.

With cash bail gone, judges assess dangerousness, which they couldn’t do before, she said, and in Bernalillo County, this has resulted in the detention of over 3,000 people pending trial based on their perceived threat to public safety, rather than their ability to pay bail.

Bacon asked lawmakers to make public policy decisions based on what the state constitution mandates, on facts, and on verified data. She is also asking the Legislature to fully consider and understand the costs, both fiscal and human, that come with the impact of their decisions.

Speedy trials

New Mexico benefits when criminal cases get resolved in a timely and fair manner, Bacon said. Over the past year, the Supreme Court has tried to expedite criminal cases and limit how often victims, witnesses and police must appear in court.

Bacon gave an example that the Second Judicial District Court in Albuquerque is using retired judges to hold settlement conferences to facilitate plea discussions in criminal cases. About 43% of the 524 cases referred to the program last year were resolved through pleas or prosecutors dismissing cases, she said.

A pilot project to reduce appearances in the Bernalillo County Metropolitan Court and the Santa Fe Magistrate Court has resulted in half as many preliminary hearings in felony cases. This means fewer court appearances by victims, witnesses and police. It also leads to better attendance by defendants at preliminary hearings, Bacon said.

Solutions to cut time in court for lower-level offenses are also showing benefits that save resources and make fewer demands on police to be present at hearings.

Traffic violations in all magistrate courts and the Bernalillo County Metro Court are conducted remotely; pretrial interviews with police in misdemeanor cases are suspended under a pilot program in the Metro Court and the Santa Fe County Magistrate Court; and the Supreme Court last month agreed to collapse pretrial hearings with the preliminary hearings to one proceeding rather than two.

At the request of prosecutors, Bacon added, the courts have expanded the number of grand juries in district courts in Albuquerque and Santa Fe.

Eliminating fees

The courts are also advocating for the elimination of post-adjudication fees, Bacon said, which are tacked on to pay for government programs and are separate from fines and penalties set by the Legislature through criminal laws.

Jason Clack, director of the Court Operations Division at the Administrative Office of the Courts, told lawmakers in the fall the purpose of the fees is not punishment, deterrence or even rehabilitation.

The state’s Motor Vehicle Division has suspended 250,000 licenses not because of any bad driving but because of a missed court hearing or a missed payment, said Monica Ault, state director of the Fines and Fees Justice Center.

If programs usually funded by court fees are important to lawmakers and to New Mexicans, Bacon said, they should be paid for through revenue from the state General Fund and overseen by the Legislature.

Eliminating fee funding is successful in other states across the country and promotes budget transparency with state governments, Bacon said. It stops “the unjust practice of paying for government functions on the backs of those who can least afford it,” she said.

Limited options for legal help

New Mexico has large legal deserts, Bacon said, where there are few to no options for legal representation in civil matters.

For instance, Harding and De Baca counties don’t have a single practicing lawyer, she said. Guadalupe County has one lawyer in more than 3,000 square miles.

Twenty-one percent of New Mexico counties have five or fewer lawyers, and 33% have 10 or fewer, Bacon said.

Three-quarters of New Mexicans have very limited options for accessing legal services, she said, particularly in family law cases regarding child custody, divorce, and domestic violence.

The courts’ Modest Means Helpline, launched in October, provides legal help to people living in poverty or who are ineligible for New Mexico Legal Aid. Attorneys and volunteers have supported 245 callers and helped 680 people in 24 of New Mexico’s 33 counties, she said.

High call volume and a lack of staffing restricts intake to 20 hours per week, and the Helpline cannot operate full-time, Bacon said, so the courts are asking lawmakers this year to fund two additional staff attorneys and another intake person.

“When people have access to legal resources, such as plain-language forms, legal advice, self-help centers, or pro bono attorneys,” she said, “They are empowered with the knowledge about their full rights and the legal process giving them access to the justice that they deserve.”