'The problem in America is that we have too many people locked up — and the vast majority of them are the wrong people' - District of Columbia Senior Superior Court Judge Truman Morrison
Amendment Would Keep only Dangerous or Flight-prone Arrestees Behind Bars until Trial
Measure before voters in November would put a dent in bail bondsmen’s business, cut cost of taxpayers of jail stays
BY DAN VUKELICH
Truman Morrison is an evangelist of sorts who crisscrosses the country telling government officials they need to empty their jails – which is odd for a judge who has locked up thousands of people in his 37 years on the bench.
But Morrison now says that locking up people to await trial just digs a deeper hole for them once they get out and that it has become a growing financial drain on taxpayers.
As The New York Times put it in “The Bail Trap,” an August 2015 piece on the inherent unfairness of the U.S. bail bond system, “Every year, thousands of innocent people are sent to jail only because they can’t afford to post bail, putting them at risk of losing their jobs, custody of their children — even their lives.”
“As bail has evolved in America, it has become less and less a tool for keeping people out of jail, and more and more a trap door for those who cannot afford to pay it,” wrote Nick Pinto, author of the piece.
Until recently, nobody paid much attention to the people who couldn’t post bond, but with lawsuits over jail overcrowding on the rise nationwide, “People are waking up to how much money they’re spending on keeping people locked up in cages,” Morrison said.
“The problem in America is that we have too many people locked up — and the vast majority of them are the wrong people, the people who don’t pose a danger but can’t make a $1,000 or $2,000 bond.”
“Rich people get out of jail, and poor people stay in,” he said.
A 2010 study by the New Mexico Sentencing Commission found the median length of stay in county jails of inmates awaiting trial on felony charges was 147 days. The median length of stay of inmates awaiting trial on misdemeanor charges was 84 days.
At a cost of $100 to $125 a night per inmate at Bernalillo County’s Metropolitan Detention Center and an average of $65 a night in other counties, that’s an amount that has gotten the attention of New Mexico’s counties, the New Mexico Supreme Court and, this past winter, the New Mexico Legislature.
In the 2016 session, the Legislature approved Constitutional Amendment No. 1, which goes before New Mexico voters in November.
The amendment would permit bail to be denied “if the prosecuting authority requests a hearing and proves by clear and convincing evidence that no release conditions will reasonably protect the safety of any other person or the community.”
At the same time, the amendment would encourage judges to release people before trial who aren’t dangerous.
“A person who is not detainable on grounds of dangerousness nor a flight risk in the absence of bond and is otherwise eligible for bail shall not be detained solely because of financial inability to post a money or property bond,” according to the proposed amendment.
The District of Columbia courts adopted similar rules. “Now, not a single man or woman in the District of Columbia is in jail because they didn’t have the money to get out,” Morrison said.
Morrison, a friend of New Mexico Chief Justice Charles Daniels, was invited to New Mexico to discuss the District of Columbia experience. On an average day in Washington, 10 percent to 12 percent of the jail population is ordered held without bond until a preventive detention hearing can be scheduled in three to five days.
The rest go before judges, and most of those are released without posting a money or surety bond.
“Ninety percent of them come back and are not rearrested,” Morrison said. Those 90 percent, most of them poor, don’t lose jobs, apartments or their families because they’re not sitting in jail merely because they can’t raise $500 or $1,000 to post a bond, he said.
To aid judges in their decisions to release or detain people, New Mexico’s courts seek to adopt a risk assessment system created by the John and Laura Arnold Foundation, a criminal justice nonprofit.
The foundation’s Public Safety Assessment uses nine factors to determine whether an arrestee is dangerous or is a flight risk. Now in use in 30 cities, the tool is race and gender neutral, according to the foundation. In jurisdictions where it is used, it has dramatically reduced both the failure-to-appear rate and the incidence of pretrial crime.
Gerald Madrid, owner of Gerald Madrid Bail Bonds in Albuquerque, is president of the 10-member New Mexico Bail Bond Association, which lobbied against the proposed amendment at the Legislature this past winter.
Everyone is entitled to a reasonable bond, he said, as defined by the Eighth Amendment to the U.S. Constitution and mirrored in the New Mexico Constitution, which state, “Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.”
Despite bail reformers’ arguments that unsecured bonds are as effective as cash or surety bonds, Madrid said “there’s no incentive to show up, and courts have no way to enforce them.” He believes the amendment will lead to more crime and that repeat and habitual offenders will be released in larger numbers by pleading indigency.
When arrestees go to court for a bond hearing, judges are often in the dark about their prior criminal records.
“If the average person in Albuquerque or Las Cruces knew how little a judge knows about the person standing before them in a bond hearing, they’d be shocked,” said Morrison, who has studied jurisdictions around the state.
To address that, the courts are building a database to link all New Mexico courts and to allow a judge to instantly know whether an arrestee coming before him for a bond hearing has an outstanding warrant or a pending case in another jurisdiction, Chief Justice Daniels said.
The Legislature appropriated $500,000 to the New Mexico Department of Public Safety to get the database project started. It should be up and running by the end of the year, Daniels said.
Dan Vukelich is editor of ABQ Free Press. Reach him at firstname.lastname@example.org.