STATE OF NEW MEXICO, Plaintiff-Appellee, v. WALTER ERNEST BROWN, Defendant-Appellant.
NO. 34,531
IN THE SUPREME COURT OF THE STATE OF NEW MEXICO
Filing Date: November 6, 2014
Kenneth H. Martinez, District Judge
APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY
Albuquerque, NM
Jorge A. Alvarado, Chief Public Defender
Jeff Rein, Assistant Public Defender
Albuquerque, NM
for Appellant
Office of the District Attorney
Guinevere Ice
Albuquerque, NM
for Appellee
OPINION
DANIELS, Justice.
{1} The Bill of Rights of the New Mexico Constitution guarantees that “[a]ll persons . . . before conviction” are entitled to be released from custody pending trial without being required to post excessive bail, subject to limited exceptions in which release may be denied in certain capital cases and for narrow categories of repeat offenders.
I. FACTUAL AND PROCEDURAL BACKGROUND
{2} Defendant Walter Brown was arrested on May 26, 2011, and indicted two weeks later on an array of charges, including first-degree felony murder and, alternatively, second-degree murder. The district court imposed a $250,000 cash or surety bond at Defendant‘s 2011 arraignment. After spending more than two years in pretrial custody awaiting trial because he lacked the financial resources to post such a high bond, Defendant moved the district court to review his conditions of release and to release him under the supervision of the Second Judicial District Court‘s pretrial services program with appropriate nonmonetary conditions of release. Defendant agreed to accept conditions of release that included monitoring by a GPS device, living with his father, making regular contact with the pretrial services program, and maintaining employment at a local restaurant that had agreed to hire him.
{3} In support of his motion, Defendant provided the district court with extensive information about his personal history and characteristics. Defendant‘s nineteenth birthday occurred two months before his arrest in this case. An only child who has always lived with one or both of his parents, he cannot live independently due to developmental and intellectual disabilities. He attended special education classes throughout
{4} At a hearing on his motion for release on nonmonetary conditions, Defendant presented testimony from Dr. James Harrington, a psychologist with the district court‘s pretrial services program who had interviewed and evaluated Defendant to determine whether he would be an appropriate candidate for supervised pretrial release. Dr. Harrington characterized Defendant as compliant, cooperative, and honest during the interview. Dr. Harrington concluded that Defendant exhibits none of the factors typically correlated with dangerousness or a risk of flight, such as prior criminal history or a history of mental illness or substance abuse. Dr. Harrington also verified that Defendant has the capacity to understand and comply with the proposed conditions of supervised release. Based on his evaluation, Dr. Harrington opined that Defendant was an appropriate candidate for release under the supervision of the pretrial services program with GPS monitoring.
{5} The State declined to cross-examine Dr. Harrington or to present any evidence of its own. Instead, the State simply argued that the $250,000 bond should remain in place due to the serious nature of the criminal charges against Defendant. In support of its argument, the State proffered an undisputed account of the factual circumstances underlying the charges. On the day of the alleged homicide while she was highly intoxicated, Defendant‘s acquaintance Rebecca Duran got into an altercation with several people at a house. Before leaving the house, Duran threatened to come back and “get even” with the people there. After leaving, Duran sought out Defendant and an acquaintance named Eugene Helfer and asked them to accompany her back to the house, where neither Duran nor Helfer nor Defendant lived, to retrieve Duran‘s personal belongings. Neither Defendant nor Helfer had been present during the earlier altercation.
{6} When Duran returned to the house with Defendant and Helfer, they knocked on the front door; when there was no answer, they went around to the back of the house and entered by opening a sliding glass door. Once inside, Duran attacked several people and hit the victim in the head with a wrench. As explained by the State, Duran was “the one mostly arguing” and “starting stuff.” At some point the victim pushed Helfer, who is Defendant‘s friend. Defendant reacted by stabbing the victim once with a folding pocket knife, fatally piercing the victim‘s heart.
{7} After hearing from Defendant and the State, the district court orally denied Defendant‘s motion for release on nonmonetary conditions on the ground that Defendant‘s charge of first-degree felony murder carried a possible life sentence that would require at least thirty years of imprisonment. The district court subsequently filed a written order setting forth detailed factual findings. Based on the evidence presented at the motion hearing, the district court found that the pretrial services program could fashion appropriate conditions of release for Defendant and that Defendant could live with his father and return to his former job if released. The district court also found that Defendant‘s IQ is 70, that Defendant has longstanding ties in the community, and that Defendant has the support of both of his parents. The district court‘s findings included Dr. Harrington‘s conclusions that Defendant has no alcohol or substance abuse issues and no pending criminal proceedings or history of violence outside the allegations in this case. The district court found that Defendant had “been entirely compliant for the entirety of his pretrial incarceration of over 2 years and 4 months” and had “appeared timely and without incident at all scheduled hearings in this case.” The district court called its findings “uncontroverted.” And the district court explicitly found that the State had presented no information indicating that Defendant would commit new crimes, pose a danger to anyone, or fail to appear in court if released from custody. Despite these findings, the district court kept Defendant‘s $250,000 bond in place due
{8} After several more months of pretrial confinement, Defendant filed a second motion, again seeking release under the supervision of the pretrial services program with appropriate nonmonetary release conditions. At a hearing on the second motion, defense counsel reiterated the information presented at the first hearing five months earlier and argued that Defendant‘s unique personal history made him likely to comply with conditions of release and unlikely to commit additional crimes while released. Dr. Harrington testified again that he deemed Defendant to be a good candidate for nonmonetary pretrial release. Defendant also presented the testimony of Patrick Wojtowicz, the pretrial services officer likely to supervise Defendant if released. Mr. Wojtowicz verified that Defendant could live with his father and return to work if released. Mr. Wojtowicz confirmed that Defendant would be capable of using public transportation to get to the pretrial services office for appointments. And Mr. Wojtowicz agreed with Dr. Harrington that pretrial release with GPS monitoring and supervision by the pretrial services program would be a good fit for Defendant. Without specifically controverting the evidence presented at the hearing, the State argued against any change to Defendant‘s conditions of release on the theory that the seriousness of the charges alone justified the requirement of a $250,000 bond for release pending trial.
{9} After hearing from the parties, the district court judge admitted that he was “absolutely impressed” with Defendant‘s presentation but “hesitant to act upon it.” The district court orally denied Defendant‘s second motion to amend the conditions of pretrial release. Defense counsel asked the district court judge to clarify the reasons for his decision. The judge explained that the nature of the allegations and the potential sentence led the judge to believe that releasing Defendant “may present a danger of either flight or to other members of the community.” The district court did not file a written order disposing of the second motion.
{10} After the district court denied Defendant‘s second motion to amend the conditions of release, Defendant appealed to the Court of Appeals by filing a motion under
{11} After hearing oral arguments from the parties, this Court filed an order (1) accepting the transfer from the Court of Appeals, (2) reversing the district court‘s pretrial release order, and (3) remanding this case to the district court to set appropriate nonmonetary conditions of release, including GPS monitoring and supervision by the district court‘s pretrial services program.
II. DISCUSSION
A. This Court Has Exclusive Jurisdiction over Defendant‘s Appeal Because He Faces a Possible Sentence of Life Imprisonment
{12} As a preliminary matter we consider whether Defendant‘s appeal should be heard by this Court or by the Court of Appeals. The extent of this Court‘s appellate jurisdiction is a question of law that we review de novo. See Lion‘s Gate Water v. D‘Antonio, 2009-NMSC-057, ¶ 18, 147 N.M. 523, 226 P.3d 622.
{13} Article VI, Section 2 of the New Mexico Constitution gives this Court exclusive appellate jurisdiction over appeals from final district court judgments “imposing a sentence of death or life imprisonment” as well as jurisdiction over other appeals “as may be provided by law.” In this case, Defendant appeals from an interlocutory pretrial release order, not a final judgment. See Tijerina v. Baker, 1968-NMSC-009, ¶ 8, 78 N.M. 770, 438 P.2d 514 (per curiam) (concluding that a pretrial release order is interlocutory); State v. David, 1984-NMCA-119, ¶ 13, 102 N.M. 138, 692 P.2d 524 (explaining that an “interlocutory bail determination is not a final judgment“).
{14} Defendant‘s right to file this interlocutory appeal arises under
{15} In this case, Defendant is charged with first-degree felony murder, an offense that carries a possible sentence of life imprisonment. See
{16} Although this Court has exclusive appellate jurisdiction to hear Defendant‘s appeal, Defendant filed his appeal in the Court of Appeals. It appears that an inadvertent omission in our procedural rules may have caused Defendant‘s error. Under
{17} And although Rule 5-405(A) recognizes this Court‘s appellate jurisdiction to review certain pretrial release orders,
B. The District Court Failed to Impose the Least Restrictive Conditions of Release That Would Reasonably Assure Defendant‘s Appearance in Court and the Safety of the Community
{18} We now turn to the merits of Defendant‘s appeal. Defendant argues that the
1. Constitutional Right to Bail in New Mexico
{19} The New Mexico Constitution affords criminal defendants a right to bail in Article II, Section 13, which provides that “[a]ll persons shall, before conviction be bailable by sufficient sureties” and that “[e]xcessive bail shall not be required.” These provisions were first incorporated into the written law of territorial New Mexico when Brigadier General Stephen Kearny promulgated the Kearny Bill of Rights in 1846. See Kearny Bill of Rights, cl. 9 (1846, reprinted in Vol. 1 of NMSA 1978) (“[A]ll persons shall be bailed by sufficient sureties, except in capital offenses where proof of guilt is evident.“); Kearny Bill of Rights, cl. 10 (“[E]xcessive bail shall not be required.“). Article II, Section 13 enshrines the principle that a person accused of a crime is entitled to retain personal freedom “until adjudged guilty by the court of last resort.” Tijerina, 1968-NMSC-009, ¶ 9; see Bandy v. United States, 81 S. Ct. 197, 197 (1960) (“The fundamental tradition in this country is that one charged with a crime is not, in ordinary circumstances, imprisoned until after a judgment of guilt.“).
{20} Notwithstanding the presumption that all persons are bailable pending trial, the right to bail “is not absolute under all circumstances.” Tijerina, 1968-NMSC-009, ¶ 9. Article II, Section 13 contains two exceptions that restrict the right to bail as to certain persons. First, the district court may deny bail altogether to a person charged with a capital offense if “the proof is evident or the presumption great.”
A. the defendant is accused of a felony and has previously been convicted of two or more felonies, within the state, which felonies did not arise from the same transaction or a common transaction with the case at bar;
B. the defendant is accused of a felony involving the use of a deadly weapon and has a prior felony conviction, within the state. The period for incarceration without bail may be extended by any period of time by which trial is delayed by a motion for a continuance made by or on behalf of the defendant.
{21} Once released, a defendant‘s continuing right to pretrial liberty is conditioned on the defendant‘s appearance in court, compliance with the law, and adherence to the conditions of pretrial release imposed by the court. See
2. Origins and History of Bail in England
{22} The right to pretrial release set forth in the New Mexico Constitution has roots that extend back to medieval England, where bail originated “as a device to free untried prisoners.” Daniel J. Freed & Patricia M. Wald, Bail in the United States: 1964 1 (1964); see IV William Blackstone, Commentaries on the Laws of England in Four Books 1690 (Rees Welsh & Co. 1902) (1769) (“By the ancient common law, before and since the [Norman] conquest, all felonies were bailable, till murder was excepted by statute; so that persons might be admitted to bail before conviction almost in every case.” (footnotes omitted)). See generally William F. Duker, The Right to Bail: A Historical Inquiry, 42 Alb. L. Rev. 33, 34-66 (1977) (describing the origins and history of bail in England); Elsa de Haas, Antiquities of Bail 128 (1940) (concluding that the “root idea of the modern right to bail” came from “tribal custom on the continent of Europe“).
{23} During the Anglo-Saxon period in England before the Norman conquest, the penalty for most crimes was a monetary fine paid as compensation to the victim. See June Carbone, Seeing Through the Emperor‘s New Clothes: Rediscovery of Basic Principles in the Administration of Bail, 34 Syracuse L. Rev. 517, 519-20 (1983). Under this system of justice, the sheriff often required the accused to secure a third party, or surety, to guarantee the appearance of the accused for trial and the payment of the fine upon conviction. See id. at 520; see also Bail: An Ancient Practice Reexamined, 70 Yale L.J. 966, 966 (1961). The amount of money pledged as bail was identical to the penalty prospect upon a conviction, and the surety was required to pay the fine if the accused failed to appear for trial. Carbone, supra, at 520. This system of bail ensured victim compensation and deterred pretrial flight because the surety bore financial responsibility for payment of the penalty and had an incentive to produce the accused for trial. Id.
{24} Following the Norman conquest of 1066, capital and corporal punishment began gradually to replace monetary fines as the penalty for most offenses, and accused persons faced longer delays between accusation and trial as they waited for traveling judges to arrive and dispense local justice. See id. at 519, 521; see also Freed & Wald, supra, at 1 (“Disease-ridden jails and delayed trials by traveling justices necessitated an alternative to holding accused persons in pretrial custody.“). The development of corporal and capital punishment complicated the use of bail because the amount of money pledged no longer correlated directly to the potential punishment. Carbone, supra, at 522. The endowment of local sheriffs with discretion in setting bail led to rampant corruption and abuse. See United States v. Edwards, 430 A.2d 1321, 1326 (D.C. Cir. 1981) (en banc) (explaining that sheriffs “exercised a broad and ill-defined discretionary power to bail” prisoners and that this “power was widely abused by sheriffs who extorted money from individuals entitled to release without charge” and who “accepted bribes from those who were not otherwise entitled to bail“).
{25} In response to historical abuses, the common law right to bail was codified into
3. Bail in the United States
{26} The presumption that defendants should be released pending trial became widely adopted throughout the United States in both the state and federal systems. See Bail: An Ancient Practice Reexamined, supra, at 967. One commentator who surveyed the bail laws in each of the states found that forty-eight states have protected, by constitution or statute, a right to bail “by sufficient sureties, except for capital offenses when the proof is evident or the presumption great.” Matthew J. Hegreness, America‘s Fundamental and Vanishing Right to Bail, 55 Ariz. L. Rev. 909, 916 (2013). States modeled these provisions on the Pennsylvania Constitution of 1682, which provided that “‘all Prisoners shall be Bailable by Sufficient Sureties, unless for capital Offenses, where proof is evident or the presumption great.‘” See Carbone, supra, at 531-32 (“[T]he Pennsylvania provision became the model for almost every state constitution adopted after 1776.“).
{27} At the federal level, the first United States Congress established a statutory right to bail by enacting the
of Rights, prohibits excessive bail. See
From the passage of the Judiciary Act of 1789, 1 Stat. 73, 91, to the present
Federal Rules of Criminal Procedure, Rule 46(a)(1) ,18 U.S.C.A. , federal law has unequivocally provided that a person arrested for a non-capital offense shall be admitted to bail. This traditional right to freedom beforeconviction permits the unhampered preparation of a defense, and serves to prevent the infliction of punishment prior to conviction. See Hudson v. Parker, 1895, 156 U.S. 277, 285 . . . . Unless this right to bail before trial is preserved, the presumption of innocence, secured only after centuries of struggle, would lose its meaning.
{28} Despite the ancient origins and broad recognition of the right to bail in this country, studies of the administration of bail in the twentieth century raised a number of concerns about its widespread misuse. See Field Study, A Study of the Administration of Bail in New York City, 106 U. Pa. L. Rev. 693 (1958); Note, Compelling Appearance in Court: The Administration of Bail in Philadelphia, 102 U. Pa. L. Rev. 1031 (1954); Arthur L. Beeley, The Bail System in Chicago (1927). See generally Wayne H. Thomas, Jr., Bail Reform in America 3-19 (1976); Ronald Goldfarb, Ransom (1965); Foote, supra; Freed & Wald, supra, at 9-21. The studies all concluded that the system of money bail in the United States discriminates against indigent defendants who lack the financial resources to post bail. See, e.g., Thomas, supra, at 11, 19 (“The American system of bail allows a person arrested for a criminal offense the right to purchase his release pending trial. Those who can afford the price are released; those who cannot remain in jail. . . . The requirement that virtually every defendant must post bail causes discrimination against defendants who are poor.“). Researchers also found that defendants incarcerated pending trial were held “under harsher conditions than those applied to convicted prisoners,” even though many of those defendants ultimately were either acquitted or given no sentence of imprisonment upon the disposition of their cases. Foote, supra, at 960.
{29} These concerns were accompanied by criticism of the growing role commercial bail bond agents played in determining whether defendants would be released pending trial. See Notes, Preventive Detention Before Trial, 79 Harv. L. Rev. 1489, 1490 (1966). No commercial bail bond industry existed in medieval England, where pretrial release was conditioned upon the accused securing a reputable friend or relative to personally assure the accused‘s appearance for trial. See Thomas, supra, at 11-12; see also F.E. Devine, Commercial Bail Bonding 5 (1991) (explaining that sureties in eighteenth-century England “were viewed as actively exercising a friendly custody of the accused“). To the contrary, the English judicial system has always found the concept of commercial sureties repugnant. See generally Devine, supra, at 37 (explaining that, in the nineteenth century, the English common law treated an agreement to pay a surety for bail as an “unenforceable illegal contract contrary to the public interest” and, in the twentieth century, as a “crime of conspiracy to effect a public mischief” or a crime of “conspiracy to obstruct the court of justice“); id. at 45 (explaining that the English Bail Act of 1976 sets forth criminal penalties for agreeing to indemnify a surety in a criminal proceeding, effectively barring any commercial bail bond industry). England is not alone in its rejection of the commercial bail bond industry. “Viewed from an international perspective, the commercial bail bonding system has provoked an almost universally unfavorable reaction” in common law judicial systems, and “only one country, the Philippines, has adopted a commercial bail bonding system similar to the American system.” Id. at 15.
{30} Contrary to this international trend, a commercial bail bond industry emerged in the early United States. Contributing factors included the near-absolute right to bail set forth in the Judiciary Act of 1789 and in most state constitutions, the unavailability of friends and relatives who might serve as personal sureties, and the ability of defendants to flee into the vast American frontier. See Thomas, supra, at 11-12. By the middle of the twentieth century in the United States, commercial bail bond companies who charged defendants a nonrefundable fee for their services, typically ten percent of the bond amount, frequently posted money bail. See id. at 11; Freed & Wald, supra, at 22-24.
{31} A commercial bail bond may enable a defendant to post money bail required by the court as additional assurance that the defendant
is that the professional bondsmen hold the keys to the jail in their pockets. They determine for whom they will act as surety—who in their judgment is a good risk. The bad risks, in the bondsmen‘s judgment, and the ones who are unable to pay the bondsmen‘s fees, remain in jail. The court [is] relegated to the relatively unimportant chore of fixing the amount of bail.
Pannell v. United States, 320 F.2d 698, 699 (D.C. Cir. 1963) (Wright, J., concurring).
{32} Some fifty years ago, widespread concerns about problems and inequities in bail practices sparked national interest in establishing new bail procedures and pretrial programs that would treat the rich and the poor more equitably by facilitating pretrial release without the requirement of monetary bonds. The modern bail reform movement began with the Manhattan Bail Project, conducted in the 1960s by the Vera Foundation in New York City. See Thomas, supra, at 3, 20-27; Goldfarb, supra, at 150-72. Through the Manhattan Bail Project, defendants were interviewed prior to their first appearance in court to evaluate whether they were good candidates for pretrial release on recognizance; that is, release “on one‘s honor pending trial.” Goldfarb, supra, at 153-54. The standard interview questions included an inquiry into a defendant‘s personal background, community ties, and criminal history. Id. The interviewer scored a defendant‘s answers using a point-weighing system and verified answers for accuracy, usually over the telephone with references the defendant provided. Id. at 154-55, 174-75. The interviewers gave the resulting information to the court and made recommendations regarding which defendants should be released on recognizance. Id. at 155. The Manhattan Bail Project proved successful. During the first three years of the experiment, defendants released on recognizance at the recommendation of the Vera Foundation were about three times more likely to appear for trial than defendants in control groups deemed eligible for release on recognizance who instead were released on money bail. Id. at 155, 157. The Manhattan Bail Project “showed that defendants could be successfully released pretrial without the financial guarantee of a surety bail agent if verified information concerning their stability and community ties were presented to the court.” Thomas H. Cohen & Brian A. Reaves, Pretrial Release of Felony Defendants in State Courts 4 (U.S. Dep‘t of Justice Nov. 2007). The success of the Manhattan Bail Project increased national interest in bail reform and triggered the creation of pretrial services programs across the country. See Timothy R. Schnacke et al., Pretrial Justice Inst., The History of Bail and Pretrial Release 10 (2010); see also Marie VanNostrand et al., Our Journey Toward Pretrial Justice, 71 Fed. Probation, no. 2, 2007, 20, 20 (discussing pretrial services agencies “as providers of the information necessary for judicial officers to make the most appropriate bail decision” and to “provide monitoring and supervision of defendants released with conditions pending trial“).
{33} Driven by the same concerns that inspired the Manhattan Bail Project, Congress enacted the Bail Reform Act of 1966, the first major reform of the federal bail system since the Judiciary Act of 1789. See Bail Reform Act of 1966, Pub. L. No. 89-465, 80 Stat. 214 (repealed 1984). The stated purpose of the Bail Reform Act of 1966 was “to assure that all persons, regardless of their financial status, shall not needlessly be detained pending their appearance to answer charges . . . when detention serves neither the ends of justice nor the public interest.” Id. Sec. 2. The Act included the following key provisions to govern pretrial release in noncapital criminal cases in federal court: (1) a presumption of release on personal recognizance
{34} Congress again revised federal bail procedures with the Bail Reform Act of 1984, enacted as part of the Comprehensive Crime Control Act of 1984. See Bail Reform Act of 1984, Pub. L. No. 98-473, § 202, 98 Stat. 1837, 1976 (codified at
{35} Twentieth-century advances in pretrial justice notwithstanding, the administration of bail in the United States remains problematic. See John S. Goldkamp, Judicial Responsibility for Pretrial Release Decisionmaking and the Information Role of Pretrial Services, 57 Fed. Probation 28, 30 (1993) (“Even after decades of bail reform, serious questions about the fairness and effectiveness of pretrial release in the United States have not been resolved.“). A recent United States Department of Justice report, which provides statistics about state court felony defendants in the nation‘s seventy-five largest counties between 1990 and 2004, reflects some of the enduring inequalities in our nation‘s system of bail. See Cohen & Reaves, supra. The report demonstrates that, in the last two decades, states have again increased their reliance on commercial surety bonds while decreasing the use of personal recognizance releases. See id. at 1-2 (“Beginning in 1998, financial pretrial releases, requiring the posting of bail, were more prevalent than non-financial releases.“). As a result, the number of pretrial inmates in jail populations has grown “at a much faster pace than sentenced inmates, despite falling crime rates.” Kristin Bechtel et al., Pretrial Justice Inst., Dispelling the Myths: What Policy Makers Need to Know About Pretrial Research 1-2 (Nov. 2012). Most of the defendants who remain in custody pending trial stay in jail because they cannot afford the bail set by the court, not because they have been denied bail altogether. See Cohen & Reaves, supra, at 1 (“Among [felony] defendants detained until case disposition, 1 in 6 had been denied bail and 5 in 6 had bail set with financial conditions required for release that were not met.“). “Hispanics were less likely than non-Hispanic defendants to be released, and males were less likely than
{36} To address the persistent inequities and inefficiencies in our current administration of bail, a number of national entities have promulgated standards and best practices for pretrial release programs. See, e.g., Am. Bar Ass‘n, ABA Standards for Criminal Justice: Pretrial Release (3d ed. 2007) (hereinafter ABA Standards); Nat‘l Ass‘n of Pretrial Servs. Agencies, Standards on Pretrial Release (3d ed. 2004) [hereinafter NAPSA Standards]; Nat‘l Dist. Attorneys Ass‘n, National Prosecution Standards, Standards 4-4.1 to 4-4.5, at 56-57 (3d ed. 2009). Renewed interest in pretrial justice has led some commentators to suggest that the criminal justice system in the United States has begun to experience a new wave of bail reform in the twenty-first century. See Bechtel et al., supra, at 2 n.1; Schnacke et al., supra, at 21-27 (noting that “jurisdictions across the United States have become significantly more interested in the topic of bail and pretrial release“).
4. The New Mexico Pretrial Release Rules
{37} The
{38} Originally, the only valid purpose of bail in New Mexico was to ensure the defendant‘s appearance in court. See
{39} If a person is bailable under
- the nature and circumstances of the offense charged, including whether the offense is a crime of violence or involves a narcotic drug;
- the weight of the evidence against the person;
- the history and characteristics of the person, including:
- the person‘s character and physical and mental condition;
- the person‘s family ties;
- the person‘s employment status, employment history and financial resources;
- the person‘s past and present residences;
- the length of residence in the community;
- any facts tending to indicate that the person has strong ties to the community;
- any facts indicating the possibility that the person will commit new crimes if released;
- the person‘s past conduct, history relating to drug or alcohol abuse, criminal history and record concerning appearance at court proceedings; and
- whether, at the time of the current offense or arrest, the person was on probation, on parole, or on other release pending trial, sentencing, appeal or completion of an offense under federal, state or local law;
- the nature and seriousness of the danger to any person or the community that would be posed by the person‘s release; and
- any other facts tending to indicate the person is likely to appear.
{40}
{41} In addition to choosing an appropriate bail option, the trial court should consider whether to impose additional nonmonetary conditions to limit and monitor the defendant‘s conduct while released pending trial. See
5. The District Court Requirement of a Monetary Bond in This Case Was Unsupported by Evidence and Contrary to Law
{42} In brief, a pretrial release determination under the New Mexico Constitution and our rules of criminal procedure includes three main inquiries. First, is the defendant bailable pending trial, or should the defendant be detained under one of the exceptions in
{43} This Court will reverse a district court‘s pretrial release decision “only if it is shown that the decision: (1) is arbitrary, capricious or reflects an abuse of discretion; (2) is not supported by substantial evidence; or (3) is otherwise not in accordance with law.”
{44} The district court necessarily determined that Defendant was bailable by entering a pretrial release order at Defendant‘s arraignment in 2011 but then imposed the most restrictive type of bail available under
{45} It is not clear from the record before this Court what, if any, information the district court had when it first entered the pretrial release order at Defendant‘s arraignment, and we do not review that earlier decision. We address only the ruling that has been appealed to us, the refusal to modify the $250,000 cash or surety bond that Defendant was unable to post.
{46} After the first bail review hearing, the district court found there were no facts indicating that Defendant would likely “commit new crimes,” pose “a danger to anyone,” or “be unlikely to appear if released.” The information Defendant presented at the second review hearing was consistent with the information he presented in support of his first motion. The State failed to present any new information at the second hearing or to controvert Defendant‘s evidence and continued to rely solely on the nature of the crime charged. The district court, without a further written order, declined to change the conditions of release, stating merely that Defendant “may present a danger of either
{47} Contrary to the explicit requirements set forth in our rules, the district court failed to explain in the record any rational connection between the facts in the record and the ruling of the court, perhaps because there was no such connection. See
{48} All of the evidence Defendant presented supported a modification of Defendant‘s bail, and none of the evidence supported the district court‘s decision to keep the $250,000 bond in place. The State failed to controvert Defendant‘s evidence, offered no evidence of its own, and declined to cross-examine Defendant‘s witnesses. The district court denied Defendant‘s first motion despite the court‘s express finding that there were no facts indicating that Defendant would pose a flight or safety risk if released. The district court denied Defendant‘s second motion without entering any findings of fact to support its decision, explaining only that “the nature of the allegations” and “the exposure that is contained within the various counts of the indictment” led the court to conclude that releasing Defendant “may present a danger of either flight or to other members of the community.” This conclusion is inconsistent with the record and unsupported by substantial evidence.
{49} The district court‘s decision was contrary to
{50} The findings of fact the district court entered following the first motion hearing demonstrate that all of the information regarding Defendant‘s personal history and characteristics supported a reduction of Defendant‘s bond. The district court found that Defendant “would have an appropriate place to live with his father,” that Defendant‘s “former employers were seeking his return to employment,” and that Defendant‘s “ties in the community are longstanding and continuing with the familial support of his parents.” The district court also found that Defendant had no pending criminal charges, no alcohol or substance abuse problems, and no history of violence outside the allegations in this case. And the district court found that Defendant had “been entirely compliant for the entirety of his pretrial incarceration of over 2 years and 4 months” and had “appeared timely and without incident at all scheduled hearings in this case.” Finally, the district court documented the absence of any facts indicating that Defendant would predictably “commit new crimes,” pose “a danger to anyone,” or “be unlikely to appear if released.” Although the district court noted that it had drawn no conclusions “as to the weight of the evidence” against Defendant, it denied Defendant‘s first motion solely because of “the nature and seriousness of the alleged offense.”
{51} It is clear that the district court based its pretrial release decision on only one of the factors identified in
{52} Neither the Constitution nor our rules of criminal procedure permit a judge to base a pretrial release decision solely on the severity of the charged offense. Bail is not pretrial punishment and is not to be set solely on the basis of an accusation of a serious crime. As the United States Supreme Court has emphasized, “[t]o infer from the fact of indictment alone a need for bail in an unusually high amount is an arbitrary act.” Stack v. Boyle, 342 U.S. at 6. The State has argued that $250,000 is a standard bond for an offense that can result in life imprisonment. This argument runs contrary to both the letter and purpose of
{53} Neither the New Mexico Constitution nor our rules of criminal procedure permit a judge to set high bail for the purpose of preventing a defendant‘s pretrial release. See
{54} We understand that this case may not be an isolated instance and that other judges may be imposing bonds based solely on the nature of the charged offense without regard to individual determinations of flight risk or continued danger to the community. We
III. CONCLUSION
{55} For the reasons stated in this opinion, we reaffirm our prior order holding that the district court unlawfully failed to release Defendant pending trial on the least restrictive of the bail options and release conditions necessary to reasonably assure Defendant‘s appearance and the safety of the community, our reversal of the district court‘s continued imposition of a $250,000 bond, and our order that Defendant be released on nonmonetary conditions pending trial.
{56} IT IS SO ORDERED.
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CHARLES W. DANIELS, Justice
WE CONCUR:
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BARBARA J. VIGIL, Chief Justice
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RICHARD C. BOSSON, Justice
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EDWARD L. CHÁVEZ, Justice