CLOSING THE REVOLVING DOOR: Changes to Pre-Trial Detention Could Keep Community Safer

The revolving door of New Mexico’s criminal justice system could be slowing. On May 8, the New Mexico Supreme Court issued two new rules related to the detention of defendants as they await trial. Here’s what those changes look like and what they could mean.

Automatic detention for felony arrests while on pre-trial release

The first of these two pre-trial detention rules, 05-403, requires courts to order a defendant be held when they are charged with a felony or certain misdemeanor charges – including DWI, negligent use of a firearm, aggravated battery and certain domestic violence charges – while out on pre-trial release pending trial for other felony charges. From there, that defendant must be sent back before the first judge, who will reconsider the defendant’s conditions of release, a hint to the judge to seriously consider pre-trial detention.

This rule preceded the effective date of a state law, Senate Bill 271, that lays out many of these requirements. Sponsored by Sen. Daniel Ivey-Soto (D-Bernalillo), the one-page bill is quick and clear in cracking down on repeat offenders. And, in addition to creating immediate consequences for defendants who violate the conditions they agreed to when they were released, this rule also increases accountability for judges by making these challenging defendants their responsibility, and giving them a second chance to keep the community safe.

Police officers and victims of crime alike complain of the “revolving door” where defendants are arrested and charged with crimes – sometimes violent ones – and then released again. And while those defendants should be on their best behavior, data released in late 2022 showed, on average, five released defendants each week were charged with committing a new violent crime while awaiting trial. Arresting and releasing defendants who have proven themselves to be a danger to the community is a waste of our law enforcement officers’ time and resources and fails to protect our residents.

It’s important to point out this new rule falls short of a rebuttable presumption of detention – a “default setting” of awaiting trial in jail when the defendant is charged with a serious felony. The Chamber has argued for years that some charges should automatically trigger detention and place the burden of proof on the defendant to make the case that their release doesn’t put the community in danger. However, a mechanism that automatically calls for the detention of defendants who don’t respect the conditions of their release (or the law) is a step in the right direction.

Minimizing the Arnold tool’s influence

The second rule, 05-409, is more general but may have an even greater impact due to the way it could influence judges’ decision-making process when it comes to pre-trial release. This rule says judges can no longer base their decision on a pre-trial risk assessment instrument, often called the Arnold tool.

This tool ostensibly helps “calculate” a defendant’s risk to the community, based on the individual’s prior convictions and history of court appearances, and recommends pre-trial action on a scale that ranges from release with no conditions all the way up to detention or release with maximum conditions. An example of this matrix is below.

While the tool can be helpful, offering what seems like a clear-cut formula for when to hold or release defendants, it fails to take into account other critical variables, like a defendant’s potential dangerousness.

As a result, the tool doesn’t always get it right – sometimes with deadly consequences, like when Devin Munford allegedly shot Devon Heyborne on his own doorstep over a drug dispute in 2021. Munford had been released on his own recognizance with an ankle monitor on charges that included shooting a firearm from a vehicle with a stolen gun. It was later revealed law enforcement hadn’t even been notified when Munford had left his allowed GPS-monitored areas, violating his conditions of release even before he pulled the trigger. Munford received the maximum sentence of life in prison plus 25 years this January for the murder.

For years, the Chamber, alongside victims’ advocates and other public safety-minded organizations, have called for changes to the Arnold tool, or to judges’ seeming reliance on it. This rule might just be it, clarifying that risk assessment tools can still be used, but shouldn’t be the deciding factor: “The risk assessment instrument remains valid,” the new rule says. “However, this instrument only measures risk and should not be used as a stand-alone factor to make a recommendation for or against pretrial detention. The risk assessment score may be considered as part of a defendant’s history and characteristics. …”

So, what do these two new rules mean for the Albuquerque community? Only time will tell, but we’re glad to see state decision-makers take action to address these vulnerabilities in our justice system. Here’s hoping these changes make a difference now – and that more improvements are coming soon, too.

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