"This action is little more than a desperate charge by the commercial bail industry to regain the control it once unlawfully exerted over pretrial release of criminal defendants in New Mexico."
The New Mexico Supreme Court has fired back at the state’s bail bond companies, saying their recent lawsuit challenging the state’s new bond rules are a “desperate” attempt by the industry to regain control over the bail process that it illegally exerted for years.
New Mexico has followed federal bail guidelines since 1972, and those federal guidelines establish the “presumption of release,” the Supreme Court said in its response to the bail bond companies’ federal court lawsuit seeking to block the new rules.
“Plaintiffs ask this Court to nullify the New Mexico Supreme Court’s rule-making authority, to invent a new constitutional ‘right’ to money bail in all cases, and to effectively repudiate a half-century of bail reform efforts both in the federal court system and in New Mexico,” the court’s response said.
“Disguised as an effort to maximize the options for pretrial release available to criminal defendants, this action is little more than a desperate charge by the commercial bail industry to regain the control it once unlawfully exerted over pretrial release of criminal defendants in New Mexico. Plaintiffs utterly fail to meet any, let alone all, of the four required showings to obtain that unprecedented relief through a preliminary injunction.”
The Bail Bond Association of New Mexico filed suit against the Supreme Court last month, saying the new bond rules, which took effect July 1, were hurting their business. According to the suit, the organization’s members are “the many bail bond companies that have been severely harmed by the drastic reduction in the number of defendants given the option of jailhouse bonds or secured bonds under the new law.
“If New Mexico criminal defendants had the option of secured bonds or jailhouse bonds, the members of plaintiff BBANM would help them to take advantage of that option. Plaintiff BBANM thus asserts both its members own constitutional rights and those of their potential customers,” the lawsuit added.
New Mexico voters approved a change in the New Mexico Constitution in November 2016 to provide district court judges with the authority to detain felony defendants shown to be too dangerous for release while awaiting trial. The Constitution also now explicitly guarantees that people who are arrested, and who are not dangerous or a flight risk, cannot be held in jail pretrial solely because they are unable to afford a money bail bond.
In an affidavit to the Supreme Court’s answer to the lawsuit, Justice Charles Daniels said there was basically nothing new about New Mexico’s bail rules.
In 1972, the state wrote rules for bail that followed the federal Bail Reform Act of 1966. Those rules “specifically incorporated the evidence-based, rather than money-based procedures that were and still are statutorily required for federal courts,” Daniels’ affidavit said.
Like the Supreme Court’s “new” rules, the 1972 rules required that a defendant’s conditions of release be set during an initial court appearance, and not before, and have required “nonfinancial” conditions of release “Unless the court makes specific findings that no nonfinancial conditions will reasonably assure court appearance.”
But since 1972, an unlawful, money-based system of bail developed, Daniels’ affidavit said.
“The New Mexico Supreme Court realized that despite the federal-law-based provisions of the rules in existence since 1972, many courts of the state had drifted into unlawful reliance on a growing money-bind industry and practices of routinely requiring money bonds, including fixed bond schedules that did not require judicial determinations of individual risk or ability to pay, in apparent violation” of the state’s rules and the New Mexico Constitution, Daniels’ affidavit said.
The bail bondsmen have argued that the new rules prevent pre-trial detainees from bonding out until they are arraigned, when under the old rules they could have bonded out from the jailhouse, within hours.
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