Before the reforms, dangerous defendants could buy their way out of jail by paying a bondsman.
Defendants, no matter how dangerous, who could post the bond would be released.
BY LEO M. ROMERO
Reforms
to New Mexico’s traditional money-based bail system will make our
community safer by permitting judges to lock up defendants who are
most likely to commit new crimes if released. And the reforms
should not be blamed for the increase in crime reported in the press.
They became effective just three months ago, on July 1.
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| Leo M. Romero |
A federal judge, in rejecting a challenge to the reforms by bonding companies, described the pre-reform bail practice in New Mexico as having “drifted into unlawful reliance on a growing money-bond industry and practices of routinely requiring money bonds that did not require judicial determinations of individual risk or ability to pay.”
The
Committee on Pretrial Release reviewed bail practices and recommended
an amendment to the New Mexico Constitution to permit detention of
the most dangerous defendants awaiting trial and revisions to the
rules of criminal procedure that minimize reliance on money bonds for
pretrial release.
The
voter-approved constitutional amendment permits judges to detain
dangerous defendants if they pose an unacceptable risk of
committing additional crimes if released. These defendants
should be locked up pending trial, and the amendment now gives judges
the authority to jail them without setting any bond that might be
posted.
For
defendants not subject to pretrial detention, the concept of bail,
dating back to Medieval England, allows defendants to be released.
A defendant is presumed to be innocent until proven guilty beyond a
reasonable doubt, and a person should not be punished unless
found guilty after a trial. Jailing a
person before trial based solely on a charge
contradicts the presumption of innocence and punishes that
person without determining guilt.
Pretrial
release conditions should minimize the risk that defendants may
commit new crimes if released – risk of danger – or skip
their trials – risk of flight. These risks vary in degree
depending on each individual. Some defendants present
unacceptable risks and should be detained. Others pose risks ranging
from low to medium to high.
Except
for those who should be detained, defendants should be released under
conditions that reasonably ensure they will appear at trial
and not commit new crimes. The defendant has not been proven
guilty, and release pending trial saves the cost of jail. Pretrial
detention is justified only when no conditions will ensure the safety
of the community.
The
revised rules give judges the authority to revoke release if the
defendant does not abide by the conditions of release or commits a
new crime.
An
Albuquerque Journal editorial said the new pretrial detention rules
need time to show results. I agree. The reforms will require judges,
prosecutors, and defense attorneys to adjust to changes from a system
that relied on money bonds to a new system based on individualized
assessments of risks. I am confident that the reforms will better
protect our community from crime.
Leo
M. Romero, Former Dean and Emeritus Professor, UNM School of Law
Chair,
NM Supreme Court Ad Hoc Committee on Pretrial Release
1 comment:
What I could never understand is this: Judge sets bond at let's say $15,000 cash or surety. To me this means defendant has to pay $15k or 10% to the courts in order to be released from jail. Now we have bail bonds men that stalk arraignments, waiting to see if there is a family member that talks with the defense attorney & then the bondsman approaches them as they leave courtroom. I know for a fact that s bondsman will tell someone that if they can give them 3-5% or maybe less, they'll bond the person out. The bondsman is representing to the courts that they have received the court ordered 10% surety & defendant is released. So a defendant can actually get out with paying $100 to a bondsmen & go on to commit more crimes, etc. How do the courts allow this? In my opinion it as though the bail company is lying to the court or at least portraying deception.
A cash bond is a cash bond; 10% surety is 10% surety.
I understand bail bond companies need to make a living & although I have a friend that is one, doesn't mean I agreed with the practice.
Judges need to make it clear the bail companies their court orders are that, ORDERS.
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