New Mexicans should demand bail amendment

(posted in Albuquerque News Journal – Nov 17 2017)

The Albuquerque Journal’s (Oct. 29) editorial regarding bail reform for New Mexico concluded there is no necessity for another constitutional amendment on the issue. Inadvertently, it actually proves the point that there is a dire need for one. Justice Charles Daniels and the state’s Supreme Court have shown they cannot be trusted. Without an edict from the people enshrined in New Mexico’s Constitution, there is every reason to believe they will continue their reckless legislating from the bench.

Despite the fact that the Supreme Court is duty-bound to address the issue, the notion that justices actually listen to the executive or legislative branches is unfortunately a pipe dream – they haven’t yet listened at all.

In fact, Daniels personally lobbied for the controversial no-money bail systems used by New Jersey and Washington, D.C., during the 2016 New Mexico legislative session. He lost his bid, but what was created instead was a far superior hybrid, bipartisan compromise. It was comprised of simple, basic adjustments at both ends of the system and largely left the old system intact in the middle. On the one hand, there would be more people detained without bail, which ultimately did not occur. On the other, language was inserted that would guarantee the right to a speedy bail review based on indigency so people would not languish in jail. If it had been implemented, it would have meant that an individual would have the right to full due process to make his or her argument and then have a judge rule on the claims. It would not mean that a defendant who is unable to post a bail would automatically be released – which is what Daniels wanted and implemented.

While not perfect, I wrote an op-ed that was published in the Journal at the time in support of the amendment. What New Mexicans wound up with instead was Justice Daniels’ no-money bail system, which was ramrodded down their throats.

Daniels has incorrectly stated that changes to the state’s constitution were required due to federal court decisions. Despite that assertion, out of the entire nation, only New Mexico actually made constitutional changes based on alleged court cases.

In reality, the U.S. Justice Department, under both Presidents Obama and Trump, in various cases over the last two and a half years have concurred that the use of bail schedules is constitutional. It has also supported the premise that there is no general right to affordable bail, provided a judge reviews a case within 48 hours so that defendants can inform the court as to their specific situations.

A new constitutional amendment is needed to bring permanence and sanity to New Mexico’s system. When the court of last resort gets into the business of changing the Constitution on its own accord, it’s fair to say there is a problem and traditional solutions are not going to work.

If the Supreme Court can simply ignore the will of the Legislature and the voters, it is not a reach to conclude that it will simply declare any acts by the governor or Legislature as inconsistent with its decisions as it takes its self-appointed dictatorial powers to new levels.

The only way to guarantee that meaningful change gets done is to set in constitutional stone what bail policy in New Mexico will be for the next generation. In the process, it must completely shut the door on ivory-tower Supreme Court justices who ignored the will of the people and their elected representatives, lobbied issues of substantive law in violation of their duties, violated their oath to uphold rather than change the Constitution, and implemented their own social experiments from the bench. New Mexico needs protection from these justices, as well as the repeat criminals they seem so eager to protect.

by Jeff Clayton, Executive Director, American Bail Coalition