ACLU of New Mexico and their poor attempt to justify the Supreme Courts' bail reform-fueled crime problem

The ACLU issued a report to the legislature on Friday entitled Beyond the Myths: Making Sense of the Crime Debate in New Mexico.  The report, designed to shelter the bail reform debate (championed by the ACLU) from the rising crime in New Mexico falls short in many areas — primarily facts.

Unfortunately, it is hard to debunk a myth when there is not a single statistic or data point from New Mexico to prove or disprove any claim made in this report.

First, where are the numbers?  Legislators are poised to make significant decisions about criminal justice, and this is the type of report we are going to use to make policy?  That is not only ill-advised, it is simply reckless.  Are people are appearing for court under the Supreme Court’s new system?  What do the numbers look like in terms of new crimes while on release?  Did the Supreme Court’s policy reduce jail populations and create a new crime free utopia in Albuquerque liked they promised?  We just don’t know.  It seems like it might be time for the Courts to cough that data up. 

In fact, what little we do know about New Mexico, according to the Status Report of LFC Review of Criminal Justice in Bernalillo County, is that crime is at an all-time high…

Albuquerque, when compared to crime trends in the 30 largest cities in the US, ranks as follows…

  • 1st in increases in all crimes (26% increase)
  • 4th in increase in violent crime (26% increase)
  • 1st in increase for property crime (26% increase)
  • 1st in increase for murder (102% increase)

Second, the Public Safety Assessment (PSA) has been debunked nationally.  It just plain doesn’t work.  In a landmark study – the first of its kind – a law professor at George Mason University looked at seven years’ worth of data from the Kentucky system who have been using the PSA.  Kentucky is one of the systems upon which the Supreme Court based New Mexico’s system.

So, what happened in Kentucky?

  • No change in jail populations.
  • Increase in crimes.
  • Increases in failures to appear.
  • Let’s not forget the loss of the approximately $12 million a year that has been invested in the program for a total cost of $84 million to run the program over the last seven years.

In addition, the Arnold Foundation PSA (Arnold tool), which is used in New Mexico and several other jurisdictions, is not transparent.  The Foundation is avoiding full transparency in New Mexico and have released themselves from all liability – hiding behind their bulletproof contract with the county.

Academic researchers have been trying to get behind the curtain to the great and powerful Oz of the Arnold tool and investigate how the Arnold Foundation built and validated the PSA (Algorithmic Transparency for the Smart City).  The academic study pointed to a particularly disturbing problem with the PSA—if we preventatively detain all of the persons it says are high risk into jail, we are only getting it right 40% of the time.  In other words, in high risk cases only 4 of 10 will go on to commit a new crime or fail to appear while on bail.

In other recent research, researchers have found that random people on-line with no judicial training can do every bit as well as predicting as can these risk-assessment tools.

We can’t say for sure that having fewer arrested and charged criminal defendants in jail means less crime in general, but we can say that when it comes to repeat offenders, which run rampant in the system, that is no doubt the case.  If indeed New Jersey’s crime decrease were to be directly proven to be the result of bail reform (which ultimately it will not because of many other reforms that have had crime and prison populations dropping for years), we would probably blame their crime drop on the fact that prosecutors in New Jersey file 291% more motions for preventative detention than in Albuquerque, and on the fact that they detain roughly 4 times what New Mexico prosecutors are able to detain.

The ACLU then decides to close by reminding us that judges are just doing their job by releasing someone who is “not proven” to be a danger, because the presumption of innocence requires that result.  Well, there is zero proof in any of these cases that someone either is or isn’t a danger.  The PSA gives Judges a number that represents a percentage.  Even low-risk cases under the tool could have a failure rate as high as 10-15%, which means no one is “proven” not to be a danger or flight risk.  That’s proof of nothing more than you have odds set in a horse race or on the big game.

Further, the presumption of innocence, according to the U.S. Supreme Court, is a “doctrine that allocates the burden of proof in criminal trials.” Said the United States Supreme Court in 1979:  “The principle that there is a presumption of innocence in favor of the accused is the undoubted law, axiomatic and elementary, and its enforcement lies at the foundation of the administration of our criminal law.  It has no application to a determination of the rights of a pretrial detainee during confinement before his trial has even begun.”

As the legislature proceeds forward, we want to respectfully remind the New Mexico legislature of two things..

One, the bail bond agencies were not supposed to be wiped-off the map, and that was done by Supreme Court edict.  Certainly, there was an expectation of a reduction in the bail market, which was anticipated and should have candidly been the subject of a lively legislative debate in 2017.  New Mexico never passed legislation to implement the constitutional amendment.

Two, regardless of private bail agents, for the future of the State, judges need to be allowed to go back to doing their jobs – which they do most effectively using judicial discretion.  The courts should stop the operation of the Arnold Foundation PSA tool, or at a minimum force the transparency and study of it and make sure that it does not ultimately tie judge’s hands to be judges.

For two years, we have watched the hardworking trial judges in the State of New Mexico, and we think the legislature needs to address directly the Supreme Court which has usurped the discretionary power from the trial judges and give it back to the judges to make the important decisions we need them to make.

What is clear, at the end of the day, is that the ACLU should go pull some numbers and see what happened before it tries to explain away the crime problem in New Mexico.  The numbers we do have show that even if the Supreme Court wants to implement the New Jersey system, it cannot do so because the funds necessary to implement it were never approved.

New Mexico is ultimately turning lose – unaccountable – 350-400% more high-risk defendants in the community pending trial than New Jersey.  We are going to go out on a limb and say that may have an impact on crime.

Laura and John Arnold Foundation’s “neutrality” on bail reform just a facade?

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