New Mexico voted overwhelmingly in November last year to amend the state constitution to reform bond rules, and in June the New Mexico Supreme Court issued new rules on pretrial detainees, which took effect on July 1.
The eyebrow-raising element of the 31-page lawsuit is that though the bail bondsmen are demanding that detainees have access to rapid bail, they also object that people are being freed without bail at all. They cite a similar rule change in New Jersey, which took effect on Jan. 1 this year.
“Although New Jersey appears not to have issued official statistics on the number of defendants released on monetary bail under the new law, one prominent newspaper reported that of ‘the 3,382 cases statewide that were processed in the first four weeks of January, judges set bail only three times,’” the complaint states, citing a Feb. 6 story in The New York Times.
The complaint continues, this time citing a report in The Wall Street Journal: “Thus, in New Jersey (as in New Mexico) while bail or secured bond remains a theoretical option, ‘the reality is that judges have nearly done away with it.’”
According to the lawsuit, the Bail Bond Association of New Mexico’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.”
It continues: “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.”
Gerald Madrid, president of the bail bond association, said at a Friday news conference that the new rules will end the bail bond business.
“Of course, our businesses were devastated. We’ve laid off all of our employees across the state. Companies are shutting down,” Madrid said. “We’re no longer part of the process.”
The voter-approved amendment made it clear that one purpose of the change was to prevent detention of people who are not a danger to the community solely because they cannot afford bail. The amendment stated, inter alia: “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. A defendant who is neither a danger nor a flight risk and who has a financial inability to post a money or property bond may file a motion with the court requesting relief from the requirement to post bond. The court shall rule on the motion in an expedited manner.”
But the bail bondsmen object that the new rules burden the lower courts and delay pretrial release — essentially prohibiting jailhouse bail — by requiring, in the words of the lawsuit, that “New Mexico courts may not consider releasing a defendant on bail unless they first conclude and provide a written opinion within two days of the appearance of the defendant before them that no combination of non-monetary conditions – including substantial deprivations of pre-trial liberty like home detention, being prevented from returning to their home or some sort of 24-hour electronic monitoring for instance through an ‘ankle bracelet’ – will ensure the defendant’s appearance at trial.”
Suing the state supreme court on Friday was the Bail Bond Association of New Mexico, three state senators, two state representatives and Darlene Collins, a 61-year-old woman who says she was denied medicine she needs for the five days she was jailed.
The bail bondsmen object 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.
The legislator-plaintiffs belong to both major parties.
Collins was arrested on July 1, the day the new rules took effect. She has medical problems that require daily medication. Under the old system, Collins could have been released on a jailhouse bond, which her family was prepared to pay. But because jailhouse bonds are no longer an option, she was held for five days over the holiday weekend before she could be arraigned, and had to be hospitalized when she was released, for missing her medication.
The plaintiffs claim the supreme court exceeded its authority, as it is the responsibility of the Legislature to pass “laws providing for the preservation of the public peace, health or safety.”
They say the rules also violate the Eighth Amendment requirement that “excessive bail shall not be required,” which “necessarily implies the option of bail to avoid a pre-trial deprivation of liberty in the first place, just as the Sixth Amendment right to a speedy trial implies the option of a trial.”
And, as the Eighth Amendment guarantees the right to bail, the rules also violate the 14th Amendment guarantee of due process, and finally, conditions of release such as GPS monitoring violate Fourth Amendment protections against search and seizure.
The plaintiffs seek class certification, declaratory judgment on the Fourth, Eighth, and 14th Amendment violations, an injunction and costs of suit.
They are represented by A. Blair Dunn with Western Agriculture, Resource and Business Advocates in Albuquerque and Ethan Preston of Dallas.