This article was originally published on The Huffington Post on October 31, 2016 by Nick Wing
New Mexicans will vote on a constitutional amendment next month that would change the state’s bail system ― a system that often keeps poor defendants in jail for extended periods while they await trial, while wealthier people walk free almost immediately.
Under the current system, judges can set a defendant’s bail high to keep him or her in custody. But this doesn’t guarantee that a truly dangerous defendant won’t be able to bail out, and others remain locked up simply because they can’t afford bail.
New Mexico’s Constitutional Amendment 1 would give judges the authority to deny bail when prosecutors provide “clear and convincing evidence” that a defendant is too dangerous to be out while awaiting trial. It also explicitly prohibits the detention of defendants who aren’t deemed dangerous or a flight risk “solely because of financial inability” to pay bail.
On its face, the constitutional amendment appears to be in line with efforts to reform or eliminate the cash bail system. But many reformers question how much it would really accomplish. They say the measure protects for-profit bail bond companies and leaves the interpretation of protections for poor defendants up to judges ― the same judges who have made cash bail standard practice, despite questions about its legality.
“If left to their own devices, I have seen no evidence that the people who have constructed and have been profiting from and have grown used to this system are all of a sudden going to create a much more fair system for the poor,” said Alec Karakatsanis, founder of Civil Rights Corps, a nonprofit that has mounted a number of legal challenges to money bail schemes.
Reforming the bail system has become part of the broader campaign to overhaul criminal justice policies that disproportionately disadvantage people of color and the poor. New Mexico’s initiative would follow statewide efforts in Colorado, Illinois, Kentucky, New Jersey and Oregon.
Bail reformers say the very premise of requiring a defendant to pay for his or her freedom violates the promise of equal access to justice under the U.S. Constitution and conflicts with federal standards that require judges to impose the least restrictive release conditions that assure community safety and a defendant’s return to court. Bail also forces many people facing nonviolent or low-level charges to remain in jail when they could be released.
The cash bail system has contributed to jail overcrowding, with an increasing number of people spending longer periods behind bars without being convicted of a crime. It costs U.S. taxpayers an estimated $9 billion each year to incarcerate people who haven’t been convicted.
Here’s how the cash bail system typically works in New Mexico and around the country: After a person is arrested and booked into jail, a judge or other judicial officer assigns a bond amount, which can range from $100 to hundreds of thousands of dollars or more, depending on the alleged crime. Many courts assign preset bond amounts based on the charge, without considering an individual’s ability to pay or whether he or she is dangerous or poses a flight risk. (A bond is the money or other assets that a defendant must provide in order to make bail.)
Wealthier defendants may end up going free almost immediately, on the condition that they’ll forfeit their bond money permanently if they fail to appear in court. Other defendants secure release through for-profit bail bond companies, which charge a nonrefundable premium (usually 10 percent of the bond) that can be paid over time.
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