By Frost McGahey, Investigative Journalist

Maurine LaneyIn 2016 a constitutional amendment was passed on Bail Reform. It was sponsored by New Mexico Supreme Court Justice, Charles W. Daniels.

These changes to the law were at least part of the reason Magistrate Judge Maurine Laney retired from the bench. Laney said "I retired because I felt that common sense had been legislated out of the law and as judge, I could no longer do any good. The amendment actually stopped me from helping people. I was no longer allowed to use my judgment and common sense in setting a bond. I had to depend on a prosecutor to make a motion. If they dropped the ball, a dangerous person would be released and bad things could happen."

The original need to amend the constitution was to allow judges to hold a dangerous individual. Between New Mexico eliminating the death penalty and a court case, judges could no longer set million dollar bonds to hold dangerous defendants which was actually illegal.

When the bail reform amendment was being drafted, legislators were concerned about judges abusing power so they made the amendment apply only to felonies and not misdemeanors.

Misdemeanors include: Battery of a household member, Violation of a restraining order, Stalking, Attempted break-in, and Enticement of a child (i.e. trying to get a child into a car).

According to Laney, magistrate judges vigorously opposed the amendment because it applied only to felonies, not misdemeanors. "They took away the Magistrate Judges' discretion in setting bonds." The Board of Magistrate Judges voted No Confidence on the amendment."

Laney said, "That sparked the New Mexico Supreme Court to call an emergency meeting of all the magistrate judges. They ordered us to not to oppose the amendment. We did as we were told because the Court can take away your certificate and fire you. They silenced us.

"Since Justice Daniels was the sponsor of the amendment, I repeatedly asked him over the next couple of years how I could keep the public safe from dangerous people. He always replied, How can money keep the public safe?"

"The New Mexico Supreme Court sets the rules on how a law is to be implemented and in accordance with the law, the prosecutor is the only one who can make a motion to have a defendant held without bail. Cash bonds are only set if a defendant is found to be a flight risk, no matter how dangerous he is."

Tapping a thick file of letters that she has written to legislators stating her concerns, Laney continued, "A prosecutor needs to be organized, understand the law, and pursue aggressively defendants who are a danger to the community. There's nothing more important for public safety than a strong prosecutor."

As an example, Laney detailed a past case. "A defendant beat his wife very badly for years almost killing her on at least one occasion. He eventually got sent to prison. After serving his sentence he got out and within a few days, he shows up to her house in violation of an order of protection. This case happened prior to the Bail Reform Law. Under the current law, this means he would have to be released because the new charge is only a misdemeanor.

Many cases had similar scenarios. "There were nights I spent lying awake waiting for the call that would tell me if the dangerous person I released got charged with another misdemeanor or whether he finally killed her."

Editor's note: For further information see: Addendum – Bail Reform Problems in Maurine Laney's own words.

ADDENDUM: 

Addendum – Bail Reform Problems in Maurine Laney’s own Words.

In 2016, a constitutional amendment was passed on Bail Reform in New Mexico.  The amendment was necessary for public safety because, at that time, there was no law allowing judges to hold dangerous defendants in custody without bail.  Prior to that date, it had become a common practice by judges to use deliberately high money bonds to hold dangerous defendants in custody.  The Supreme Court clarified in the State vs. Brown decision that this practice was unlawful, thus bringing about the need for change.  

When the bill for the Bail Reform Amendment was originally put forth to the legislature, the language would have allowed a judge to deny bail to a defendant if it was proven at a hearing that no release conditions would reasonably protect the safety of any other person or the community.  Reasonable money bonds were permissible strictly to ensure a defendant’s appearance in court if they were determined to be a flight risk.  It went on to state that a defendant who was not a danger and otherwise eligible for bail shall not be detained solely because of financial inability to post a money or property bond.  

Prior to the bill’s passage, the legislature made three important changes to the wording of the bill that, in Laney’s opinion, left the amendment “fundamentally flawed.”  

The new language limited pretrial detention to only defendants who were charged with a felony crime, required that a prosecutor file a motion for pretrial detention, and limited the determination to only courts of record (eliminating Magistrate Judges from the process).  This is the language that ultimately passed and was voted into the NM Constitution.

These changes significantly reduced the effectiveness of the amendment in its goal of public safety.  Most criminal cases in New Mexico begin in the Magistrate Court.  The requirement that only a prosecutor, and not the judge, make the motion caused many dangerous defendants to be released simply because a prosecutor dropped the ball.  A judge, who has probable cause to believe a defendant to be dangerous, would be required by law to release him or her simply because no one from the local DA’s office filed a motion.

In addition, the limitation to only defendants charged with felony crimes was and is particularly problematic. It is possible to have a very dangerous defendant who is charged with a misdemeanor. Consider the fact that many crimes of domestic violence are misdemeanors:  i.e. Battery on a Household Member, Violation of an Order of Protection, Stalking, etc.  

"There have been a number of cases where a defendant has a seriously violent past, possibly even a number of prior felony convictions, who gets charged with a new misdemeanor level crime, many times involving the same victim, but the court has no legal tool to hold them in jail prior to trial.  Throughout my years on the bench, I cannot express the frustration and helplessness that this particular issue caused me.  I ran for office promising the people that I would use good judgment and common sense, only to find that my discretion to do so had been legislated out of the law.  

"Something has to change.  I have not given up trying to get our legislators to revisit the constitutional amendment that was passed in 2016.  Representative Bill Rehm (R) put forth a bill that would remove the problematic limitations to the amendment a few years back.  Sadly, for political reasons, it got shut down in committee and never reached the floor.  As a lay person now, I am not limited on speaking out and have sent many letters to the New Mexico Supreme Court.  Our public needs to be aware of the root cause of the issue and make their voices known so we can get this amendment corrected and allow judges to use discretion for the administration of justice. "