Legislation Introduced to Restore Judicial Discretion to Set Bail in New Jersey and New Mexico, Reversing In-Part the Historic Bail Reforms Implemented Last Year
As legislators around the country consider what bail-reform activists have called a tidal wave of bail reform, they might want to take a look at the fallout of the two states who first went to the no-money bail system: New Jersey and New Mexico.
Last week, Assemblyman John McKeon introduced the “Restoring Judicial Discretion in Bail Setting Act.” This legislation is intended to restore the original will of the legislature and voters, which McKeon says was not to “eliminate” monetary conditions of bail or private bail agents, but to reduce the use of financial conditions in the system.
The legislation over-rules the current Attorney General Directive and court rules which hamstring judges, forcing them to detain defendants without bail altogether or releasing them on their own recognizance and blanketing them with conditions. Of course, former U.S. Solicitor General Paul Clement continues his lawsuit against New Jersey, arguing that denying bail in favor of non-monetary conditions violates the federal constitution because, in the case of his client, the posting of a financial bond using a bail agent would have been least restrictive than house arrest, electronic monitoring, and a plethora of other conditions.
New Mexico, posited as another success, has been anything but. That is why legislation has been introduced that would: (1) repeal the previous constitutional amendment and make it easier to detain persons without bail; (2) repeal the court rules that forced implementation of the no-money bail system; and, (3) restrict the secrecy of the Arnold Foundation tool which is over-riding judicial discretion and often causing bizarre results that violate the common-sense test.
Reformers continue to point to these two states as a success, but what they do not mention are the problems. New Jersey was supposed to decrease mass incarceration, but the reduction in jail population as compared to the previous year without bail reform are paltry. Of course, the most recent statistics from the judiciary revealed that when we give the power to the government to lock people up without bail, the government will take that option – New Jersey prosecutors now seek to detain 43.6% of all cases.
New Mexico is its own boondoggle because the New Jersey plan cannot be implemented in New Mexico because it was never approved by the legislature, nor was any funding allocated for it.
So, while New Jersey is going to spend up to a half a billion annually to prove they have the “right people in jail,” New Mexico cannot prove anything except that releasing defendants without bail or supervision does not work, and proving danger or flight risk by clear and convincing evidence is hard to do without additional prosecutors to bring the cases or judges to hear them.