New Mexico

New Mexico's bail reform frustrates prosecutors, governor

Las Cruces judge says he is following the law

LAS CRUCES, New Mexico - New Mexico's sweeping bail reform has left some prosecutors and Gov. Susana Martinez frustrated.

New Mexico voters approved a measure in November letting judges deny bail to defendants considered dangerous. The measure also grants pretrial release to those who aren't considered a threat, but remain in jail because they can't afford bail.

The change went into effect July 1.

The Bail Bonds Association of New Mexico and five lawmakers claimed the rules modified statutory law without legislative approval and violated constitutional protections such as due process. However, a federal judge denied a bid to block rules governing the new constitutional provisions in New Mexico on pretrial release.

Fernando Macias, the Chief Judge for the Third District Court in Dona Ana County, said the bail reform presents several options to a judge.

"One is to determine whether the defendant presents such a risk to an individual or to the public that they cannot be permitted a bond. The other component was to make sure that individuals because of their lack of financial resources were unable to post a bond -- where normally a regular individual would be able to do so," Macias said.

Macias said the change provides judges a mechanism to basically release people from the detention center with certain conditions of release, but without having to post financial security to gain their release.

"There are certainly examples of individuals because they were unable to afford to post a bond who spent more time in the local detention center than if they had been sentenced to whatever that particular crime was if they committed it at the very beginning of their case," Macias said.

But Macias said prosecutors are filing too many of the motions. The judge's numbers show out of 95 motions filed from July through the beginning of September and brought to the court's attention, only 11 have been granted. The others have been denied.

"They are denied because of the inability from the judge's perspective to show in a clear and convincing manner that the defendant continues to pose a threat to the individual -- many times the alleged victim-- or to the public in general," Macias said. "They also have to show that there are not conditions for restrictions that the court can impose that would ensure the safety of the community or the safety of the individual that is alleged to be the victim."

Those conditions can include house arrest, a restraining order or setting a secured bond.  

Martinez, a prosecutor in Las Cruces for 25 years, believes too many people are being released.

"We have to put an end to this revolving door. The judicial system keeps letting the violent offenders right back out on the streets to commit more crimes, putting our law enforcement officers in danger and of course the general public," Martinez said.

The governor pointed to a recent case in Las Cruces.

Las Cruces police arrested 39-year-old Willey Yanez after he barricaded himself in a hotel room in the beginning of September.

Investigators said the man had a felony warrant for his arrest. The warrant indicated a charge of failing to comply with conditions of his probation.

"If they would look at these records, there is no doubt in my mind that that person would never have been allowed out only three hours after having held a SWAT team, and holding them in a hotel endangering the officers, endangering the public. This is completely unacceptable and the lawmakers and the judiciary have to do better," Martinez said.

Macias hopes to see a decrease in the number of the pretrial detention motions in the future.

"People don't want to take a risk. People within the criminal justice system don't want to take a risk. And from my perspective some of the motions that are filed clearly should never have been filed," Macias said. "To be able to reach that clear and convincing standard, it just doesn't occur. That why there has been a good number of them that have been denied, because that standard of proof could not be met."

Macias said he understands why people want justice immediately, but that is not how the system works. But he said he is frustrated with the amount of time it takes to bring a case to trial.

"Accountability comes when the individual pleads guilty or is found guilty in a jury trial. That is where there is the accountability. One of the challenges that the criminal justice system faces is that we have to reach that point of accountability sooner than we have historically been able to do," Macias said.