Catch and release: New rules affect how courts issue bonds

LAS CRUCES - Dario Gomez’s phone rings nonstop.

The longtime Las Cruces bail bondsman, who has owned and operated Dario Gomez Bail Bonds for 12 years, receives calls at all hours of the day from any one of his 300 clients, their worried family members, and those recently arrested who need a bondsman.

“I’m busy every day — crime never slows down,” he said.

But Gomez’s phone may ring less as all New Mexico courts begin to carry out new rules governing pretrial release and detention procedures in criminal cases following a constitutional amendment approved by voters in November.

Issued by the state Supreme Court, the rules went into effect Saturday and provide guidance to judges, prosecutors and defense attorneys for applying the requirements of the constitutional amendment on bail reform — a measure unanimously recommended by the Legislature and adopted by 87 percent of voters in last year’s general election.

Read:NM seeks guidance on no-bail provisions for suspects

The amendment was designed to ensure that defendants would be detained or released from jail pending trial based on individual risk factors of danger to the community or flight, and not their ability to pay a monetary bond.

The rules

Under the new rules, the courts must base all release and detention decisions on evidence of risk, rather than fixed monetary bond schedules. Key provision of the rules call for expedited procedures for pretrial detention of clearly dangerous defendants, as well as expedited procedures for assuring that non-dangerous, low-risk defendants are not jailed while awaiting trial because they cannot afford a monetary bond.

Generally, a person who is charged with a crime but does not pose a risk of flight or threat to the public can now be released from jail without having to post bond under the new rules. But misdemeanor and felony cases are handled differently.

A person charged with a misdemeanor cannot be detained, without a hearing, pending trial, and non-monetary conditions of release have to be set by a judge within three days after an arrest in a local jurisdiction.

More:DA seeks answers from New Mexico Supreme Court on bail rules

However, a person charged with a felony can be detained pending trial if "clear and convincing evidence" shows that he or she is a danger to the community. Only a District Court judge can make this determination at a pretrial detention hearing, which must be scheduled within three days of the filing date of a pretrial detention motion.

If a person charged with a felony does not pose a threat to the public but is considered a flight risk, even under non-monetary condition of release, then a judge has the authority to set a secured bond.

The rules also prohibit the use of fixed bond schedules — commonly known as “jailhouse bonds” — that set monetary bonds based solely on the severity of an alleged crime. Instead, people arrested on certain minor offenses will be eligible for automatic release on personal recognizance by a designee before an initial court appearance. But there are 16 offenses — including DWI, domestic violence and criminal sexual charges — that are excluded from release by a designee.

Bail-bond worries

While new mandates do not outlaw financial bonds, they place limitations on when defendants can secure release from jail through a bondsman, like Gomez.

In states such as Arizona, where judges have been directed to rely on individuals' personal risk factors to determine their release conditions, the bail-bond industry has taken a hit. Some bail-bond companies saw business plummet after the Arizona Supreme Court issued a rule change on April 3, urging judges to embrace the risk-assessment system.

In New Mexico, it's too soon to know how the state's bail-bond industry will be impacted by the new pretrial release rules.

"We don't know what's going to happen to our bail-bond industry," Presiding Judge Norman E. Osborne, of the Doña Ana County Magistrate Court, said. "Bondsmen have performed a very useful service for the courts, and we may feel that loss."

For Gomez, there's a real concern that business may "stall" in the weeks and months to come. But for him, and many others, the biggest worry is that the rules will result in the release of more offenders, putting public safety in jeopardy.

"Yes, these rules will hurt the (bail-bond) industry here," Gomez said. "But my primary concern is the safety of the citizens of New Mexico." He contends that the new rules are "like opening the doors to crime."

Support

Proponents say the reforms, the result of a two-year study by the New Mexico Supreme Court’s ad hoc pretrial release committee, both ensure public safety and protect individual rights of the accused.

“We sought to deal with the two worst problems of the money-for-freedom system, which are that dangerous people were being released and non-dangerous people were held simply because of not being able to buy their way out,” Supreme Court Justice Charles Daniels said in a recent interview with the Sun-News.

Daniels said a money bond "doesn't protect anyone."

“I think by substituting evidence of individual risk, in place of how much money someone can pay to buy their way out, it’ll both protect community safety better and will protect individual rights better for people who are presumed to be innocent at that stage in the proceeding,” he said.

Likewise, Las Cruces attorney Margaret Strickland, who also serves as the president of New Mexico Criminal Defense Lawyers Association, said the new rules “will make the criminal justice system safer and more equitable for all.”

“Under the old bond system,” Strickland said, “all it took was money to get out of jail. A dangerous person with money could get out of jail effortlessly, but a person without money could not get out of jail even if he or she was not dangerous.”

Strickland said the rules are intended to “fix this economic disparity” by permitting “truly dangerous persons to be held in jail and everyone else released on a non-monetary bond.”

Rebecca Duffin, a prosecutor who specializes in domestic violence cases, many of which are misdemeanor offenses, said studies have shown that the lethality rate of victims increases 500 percent in the 72 hours after a crime is reported.

“Your chances of you being murdered by your abuser in that time frame … just go off the charts,” Duffin said, “and we are releasing them, mostly likely OR (own recognizance).”

Concerns

Rebecca Duffin, a prosecutor who specializes in domestic violence cases, many of which are misdemeanor offenses, said studies have shown that the lethality rate of victims increases 500 percent in the 72 hours after a crime is reported.

“Your chances of you being murdered by your abuser in that time frame … just go off the charts,” Duffin said, “and we are releasing them, mostly likely OR (own recognizance).”

Third Judicial District Attorney Mark D’Antonio also contends that the rules “don’t help” in protecting victims or the community.

He called the rules “inherently inconsistent” and “contradictory." He pointed out that while the words “danger” and “dangerousness” do not appear in the rules, a judge setting release conditions is required to consider the “safety of any other person and the community.”

“It’s the District Attorney’s view that these provisions dictate and demand that the courts consider the ‘dangerousness’ of the defendant and the risk he or she poses to the community,” D’Antonio said in a written statement. “Any misconstruction of the rules, as noted above, poses a substantial — even grave — risk to the victim in the case, to the witnesses in the case, and to the community at large.”

D’Antonio also described the procedures for filing a pretrial detention motions as “unworkable.” It falls on prosecutors to show "clear and convincing evidence" of dangerousness and flight in order to keep a defendant detained without bond. If they can't meet that standard, defendants will be released on set conditions of release.

D’Antonio said he believes that detention motions will have to be filed — in both District Court and Magistrate Court — within a few hours of an arrest, a demand he called “unduly burdensome” to his office and law enforcement agencies.

There's also worry that detention hearings could turn into "mini-trials" that included witnesses and cross-examination.

"Every time we were to file a motion to detain, we put our case at risk for all unattended consequences that may happen," D’Antonio said.

While D’Antonio has issues with the rules, he said his office will fully abide by the orders. 

It's not clear how these detention hearings will play out in Doña Ana County.

However, in Bernalillo County, which instituted a pilot program more than a year ago, such hearings have averaged about two hours, according to District Judge Douglas Driggers, who handles mostly criminal cases in 3rd Judicial District Court in Las Cruces. Driggers said that of the 183 detention hearings held in Bernalillo County, about half have resulted in detention orders.

Moreover, according to Driggers, detention hearings in Bernalillo County have been held in only about 3 percent of all criminal cases. For that reason, he said, "there's not reason to panic."

Carlos Andres López can be reached 575-541-5453, carlopez@lcsun-news.com or @carlopez_los on Twitter.