November 16, 2016
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New Mexico Vote: Should People Be Stuck in Jail Because They’re Poor?

UPDATE, Nov. 3, 2016: A poll released late last week shows overwhelming support for a state constitutional amendment that would change the cash bail system in New Mexico.

By Jeff Proctor and Andrew Becker

ALBUQUERQUE, New Mexico – Tom Chudzinski’s hard-earned road trip came to an abrupt end in a New Mexico jail.

While on tour of the western U.S., the semiretired architect swung through Albuquerque in a motorhome packed with keepsakes from his 62 years: power tools, drafting instruments, financial records, photographs and clothes.

He left the city five months later on a Greyhound bus with what remained of his possessions stuffed into a daypack, duffel bag and cardboard box. Chudzinski also carried with him the memory of what it’s like to be locked up for 34 days, all because he couldn’t come up with $50 to buy his freedom.

The unraveling began on June 3, when Bernalillo County sheriff’s deputies knocked on the door of his motorhome and, smelling alcohol on his breath, arrested him on suspicion of drunken driving. Although they hadn’t seen him driving, they believed he had crashed his RV into a parked vehicle at a truck stop on a dusty patch of mesa on the city’s far west side.

Chudzinski says he fell asleep in the motorhome that evening after eating a meal with a friend. Next thing he knew, he was headed to the Bernalillo County Metropolitan Detention Center, one of the nation’s 40 largest county jails.

Two days later, Chudzinski was before a judge who weighed whether to release him outright or keep him locked up until he paid a bond. She considered his lack of ties to Albuquerque and reviewed his record – a handful of petty misdemeanor charges from California in the 1970s, a drunken driving conviction in 2012, and a guilty plea to felony battery that stemmed from a 2006 fight with his brother.

The judge set Chudzinski’s bond at $500. That meant just $50 paid to a bail bondsman would have set him free while his case was pending.

Chudzinski, who gets by on a meager fixed income, could not come up with the cash. And none of the bondsmen he called from the county jail would put up the paltry sum for his release because he had no ties to the area.

He remained behind bars for 34 days. His fellow inmates called him “Mr. President;” his pronounced jowls and ski-slope nose give him a striking resemblance to Richard Nixon. No one saw him as a threat.

“I’m not a violent person,” Chudzinski said. “I’m not a threat to society. There’s really no reason to hold a person like me in jail. A lot of the deputies in jail would look at me and say: ‘Hey, what are you doing in here? You don’t fit here at all.’ And it just took them 34 days to realize that maybe I don’t.”

His public defender asked a different judge to drop the bond. On July 7, that judge released him on his own recognizance. But his troubles were far from over.

By the time his case was dismissed last month for lack of evidence, Chudzinski was living in Albuquerque homeless shelters and eating meals at free kitchens. His motorhome with most of his possessions trapped inside sat on an impound lot, accruing fees he also couldn’t afford.

“I really don’t have any other choice right now other than to live out on the street,” Chudzinski said inside his public defender’s office not long after the judge dismissed his case. “I don’t have really anything other than what the homeless shelter can give me as far as clothes and a place to stay.”

Chudzinski’s story of being in jail due to financial hardship before his trial even started is common in New Mexico. Hundreds of people with low bonds like Chudzinski’s sat in the Bernalillo County jail for three days or more during July, August and September, according to reports compiled for Bernalillo County and provided to New Mexico In Depth and Reveal from The Center for Investigative Reporting.

Despite multiple requests, Bernalillo County declined to provide raw data that would have allowed a more thorough examination of who is sitting in jail, what their bonds are and how long they stay incarcerated.

On Nov. 8, New Mexicans will vote on a constitutional amendment to overhaul the use of money bail in the state. Supporters say the system that swallowed Chudzinski and continues to ensnare thousands of other poor defendants around the country is ripe for a reordering.

The country’s judicial system rests on the premise that people are innocent until proven guilty. Yet money bail programs undermine that promise: those with money may go free no matter how dangerous they are while nonviolent, low-income people often sit behind bars awaiting trial.

The U.S. Department of Justice considers the money bail system largely unconstitutional, disproportionately affecting poor people and, in many cases, minorities.

Policymakers in Washington, D.C., and statehouses across the country are debating whether and how to reform the criminal justice system, with bail one front in the battle.

New Mexico now finds itself the latest battleground for bail reform.

The amendment on the New Mexico ballot would bar judges from holding nondangerous people in jail solely because they can’t pay their way out. It also would allow judges to deny bail to defendants who are proven dangerous.

The genesis for the amendment coincided with an increase in crime in the state’s largest city and the killing of two police officers – even though the accused shooters were not out on bail.

If the amendment passes, New Mexico will join five states – Colorado, Oregon, Kentucky, Illinois and New Jersey – that have scrapped or curtailed the use of money bail, as has the District of Columbia, where only about 15 percent of people are jailed pending trial.

Many believe the amendment, which would diminish the use of commercial bond but not abolish it, could create a more equitable system. But concerns remain about whether it opens the door to potential abuse.

There has been no public polling on the ballot measure. But a veteran New Mexico election watcher and pollster believes it has a good chance of passing because it is written with a “positive spin.” Many voters, Brian Sanderoff said, will encounter the proposal for the first time in the voting booth.

“Ballot language matters,” said Sanderoff, president of Research and Polling, Inc.

Metropolitan Court Judge Sharon D. Walton, who hears cases in Bernalillo County, New Mexico, where Albuquerque is, said she started to see the cash bail system differently after a 2014 Supreme Court ruling that a defendant’s bail had been set too high.

Metropolitan Court Judge Sharon D. Walton, who hears cases in Bernalillo County, New Mexico, where Albuquerque is, said she started to see the cash bail system differently after a 2014 Supreme Court ruling that a defendant’s bail had been set too high.Credit: Marjorie Childress/New Mexico In Depth

From worst to merely bad

For years, New Mexico had one of the nation’s highest rates of pretrial incarceration. It remains high, but a November 2014 state Supreme Court decision by Justice Charles W. Daniels started to change that.

Walter Brown, a murder defendant, had spent more than two years in jail before trial on a bond he could not afford. The state’s top court ruled that bail had been set too high, violating the state constitution. Daniels admonished judges to use bail only for its original purpose: to ensure a defendant’s appearance in court. Daniels soon became New Mexico’s leading advocate for bail reform.

Judges like Sharon D. Walton in Albuquerque took note.

On a recent Wednesday morning, Walton’s misdemeanor docket ticks past at a brisk clip. For 17 years, she has sat on the bench at Bernalillo County Metropolitan Court, the state’s busiest, in its most populous county.

On this day, 24 defendants, all of limited means, appear by video uplink from the county jail. Dressed in orange jumpsuits, they look like goldfish in a crowded bowl. Hadley Brown, an assistant public defender, also appears on the screen, standing next to her clients.

She is meeting them for the first time.

Walton’s job at proceedings like these is to decide first whether probable cause exists that the defendant committed the crime, then whether they stay in jail. If they are released, she must set the conditions.

These are difficult, life-altering decisions, and the judge has limited information in front of her: a brief report on the defendant’s history from a background investigator and the charging documents, written by police officers.

The public defender asks Walton to release most of the defendants – that is routine. Occasionally, the assistant district attorney, who sits in the courtroom, objects. The background investigator who wrote the report makes recommendations, too.

Walton releases some defendants on their own recognizance, others to pretrial supervision. She requires some to sign a document promising to pay the court money if they don’t return. And, for a few, she orders a cash or surety bond, meaning the defendant pays a bail bonds company a fee and the company puts up the rest.

Before the Supreme Court ruling in 2014, Walton, like the other Metro Court judges, relied heavily on bonds — and the bondsmen who sell them.

Justice Daniels’ order led her to start to see things differently. Later came a cold splash of water in the face.

“About six months, a year ago, there was some case in the media, and I turned and I looked at my husband and I said: ‘What if I have kept somebody in jail that didn’t belong there?’ ” Walton said in an interview, just off the bench, still wearing her judge’s robe. “And he looked at me and he said: ‘Of course you have.’ ”

Charles W. Daniels, chief justice of the New Mexico Supreme Court, has pushed to amend the state Constitution to reform bail, which voters will weigh on Election Day.

Charles W. Daniels, chief justice of the New Mexico Supreme Court, has pushed to amend the state Constitution to reform bail, which voters will weigh on Election Day.Credit: Marjorie Childress/New Mexico In Depth

Two years after the ruling on Walter Brown’s case, some of its effects have been documented. It contributed to a 50 percent drop in the Metropolitan Detention Center’s population – from about 2,800 in 2014 to about 1,400. Speedier trial rulings, fewer officers making fewer arrests and other factors contributed to the decrease, too.

Court officials, attorneys, policymakers and the bail bonds industry continue to debate the legacy of the 2014 ruling, however.

Prosecutors and law enforcement officials say the case has led to the release of too many dangerous people. Assistant District Attorney Candace Coulson points to a man she is prosecuting for the 15th time in five years for everything from auto burglary to armed robbery. He has posted relatively low bonds for several of the charges, Coulson  said.

“It is a very powerless feeling, because you just stand there and you know what you know and there’s nothing that you can do about it,” she said. “And … you feel completely helpless.”

Public defenders say despite the 2014 ruling, too many of their clients who are not dangerous still languish in jail on low bonds awaiting trial.

“I have had judges say: ‘I don’t want you getting out of jail. I’m setting bond at $10,000 cash,’ ” Hadley Brown, the assistant public defender, said. “The judges aren’t always that up front about it, but judges constantly set bonds that they know absolutely that the defendant cannot post.”

Brown mentions one of her clients as an example: Tom Chudzinski.

On a recent Thursday morning, Chudzinski finishes a cup of coffee at The Rock at NoonDay ministry’s large gymnasium, not 2 miles from the Metro courthouse where his $500 bond was set.

As he walks outside, his skin is rough and ruddy from so much time spent homeless out in the elements. He reflects back on what happened after the judge set his bond.

“What I feel like has happened to me is I’ve just been trapped somewhere,” Chudzinski said. “And if things are not up to me I have to live at the whim of everybody else. And that’s not a good feeling.

The Madrid family is a bail bond institution in Albuquerque, New Mexico, as they've been in business for generations and own several bail bond companies in the area.

The Madrid family is a bail bond institution in Albuquerque, New Mexico, as they’ve been in business for generations and own several bail bond companies in the area.Credit: Marjorie Childress/New Mexico In Depth

Reform is not a new conversation

The latest national movement to reform the cash bail system follows in the steps of 1960s reformers.

Robert F. Kennedy began agitating against the money bail system in 1964, when he was U.S. attorney general. Two years later, Congress passed the Bail Reform Act, essentially doing away with money bond in the federal system.

As one of the point people for the U.S. Department of Justice’s Access to Justice Initiative, Lisa Foster has included bail reform in her traveling roadshow in recent months. She cites two concerns with the cash bail system.

First, poor people are treated differently from people with access to money with similar criminal histories and charged with similar crimes, she said. That’s a violation of the equal protection clause of the 14th Amendment.

“We (also) worry that people who are held pretrial may feel compelled to plead guilty to an offense for which they may not be guilty just to get out of jail,” Foster said.

Justice Department lawyers have filed amicus briefs in court cases to push for reform, most recently in a Georgia case involving the money bail system there. It marked the first time the department had weighed in on a federal appeals court case.

The department’s renewed visibility on the issue comes amid a larger debate about criminal justice reform nationwide that has gained momentum in recent years.

Matthew Coyte, president of the New Mexico Criminal Defense Lawyers Association, was born and raised in Great Britain and remembers his introduction to the money bail system.

“I walked into a courtroom and everyone’s in chains and jumpsuits in a misdemeanor court,” Coyte said of people who had not been found guilty. “I was flabbergasted. But it’s very normal in New Mexico.”

For years, lawyers in New Mexico have discussed their concerns with the money bail system with each other. But that conversation has never been as public as it is now.

Out of nearly 20 people involved in the criminal justice system interviewed for this story, none could say how or why the system developed as it did.

“It’s going to be hard to find evil villains in this,” Daniels, now the chief justice, said. “This is one of those things that sort of grew by drift over the years. It’s happened all over the country.”

What’s clearer is the impact the system can have on people’s lives.

Chudzinski didn’t have the cash to claim his motorhome when he was released from jail in July. Daily impound fees had reached $1,400 while he sat behind bars. So when he left jail, he had nowhere to live. Chudzinski can’t pay the impound fees and faces a potential forfeiture proceeding. It is unclear what his options are.

“I had a lot of personal pictures and just financial records from businesses that I owned, personal financial records, things that I wanted, tools that I’ve had for 40 years,” he said. “Just lots and lots of personal things that are now gone. And I doubt that I will ever see them again.”

Reformers say Chudzinski’s case exemplifies how the current system disproportionately affects the poor, a particularly salient point in New Mexico, which has the nation’s second-highest poverty rate. About one in five people live below the poverty line.

They also point to studies that show low-level defendants with minimal criminal histories are more likely to lose jobs, housing and custody of their children after two or three days in jail. And low-level defendants are more likely to commit new crimes after release if they have been jailed for longer than 24 hours.

Bail bondsman Gerald Madrid, standing outside his Albuquerque office, thinks New Mexico’s money bail system does not need to be reformed.

Bail bondsman Gerald Madrid, standing outside his Albuquerque office, thinks New Mexico’s money bail system does not need to be reformed. Credit: Marjorie Childress/New Mexico In Depth

Numbers are hard to come by

State officials have predicted the amendment, if passed, would reduce New Mexico’s pretrial detention population by 10 percent, saving taxpayers here $18 million a year. It costs $72 a day to house inmates in county jails.

But determining the number of people like Chudzinski who sit in jail in New Mexico due to financial hardship is difficult.

Last year, in a survey by the New Mexico Association of Counties, 19 of the state’s 28 county jails reported about 100,000 total jail bookings in fiscal year 2015. Two out of three defendants were being held pretrial. That’s similar to what researchers have found in county jails nationwide. But the New Mexico survey, like the national research, didn’t show how many of those were in jail solely because they could not afford bond.

Over the course of several months, New Mexico In Depth requested access to raw data from the Metropolitan Detention Center and the state court system. The goal was to examine the jail population based on a variety of factors, including bond amounts, length of stay and race and ethnicity. Bernalillo County officials denied the requests, however. Instead, the county’s contractors at the Institute for Social Research provided three “monthly reports,” each of which took a snapshot of a single day: July 31, Aug. 31 and Sept. 30.

On average, for those three days, about 170 people had been sitting in the Bernalillo County jail three days or longer on bonds of $5,000 or less. In most of those cases, that means the person could have bought his or her freedom for $500 or less – roughly 10 percent of the overall bond amount.

That’s about 40 percent of all those being held on bond in the jail on each of those days, the reports show.

Opinion about the ballot initiative runs the gamut. Defense lawyers who don’t support the change say it’s confusing and could be misinterpreted. Kate Thompson, an assistant public defender, says it may not make much difference. Bail bondsmen say the state Supreme Court ruling made their jobs more difficult, but most of them are sitting this one out.

“I don’t think the system needs to be reformed. What we’ve being doing for all these years has worked where we’re able to post our secured bonds, get people out of jail and get them to court when they’re supposed to be,” local bondsman Gerald Madrid said. “But I did give Chief Justice Daniels my word that I’m not going to fight him on this.”

Daniels said the concerns about the constitutional amendment are unfounded. He dismisses the bondsmen’s objections as financially motivated. And he says bail reform in Washington, D.C., 20 years ago did not lead to judicial abuses.

“I think they were worried that this amendment was going to result in a greater detention of people prior trial than currently exists,” Daniels said. “I think they’re absolutely wrong about that. I think history will show it to be so … This amendment clearly is going to be so much better than the status quo for all concerned.”

Tom Chudzinski, 62, stands with his bicycle, one of the few possessions he left Albuquerque, New Mexico, with after he spent 34 days in jail. Chudzinski ended up homeless because he couldn't get $50 to post bond following a drunken driving arrest that was later dismissed for lack of evidence.

Tom Chudzinski, 62, stands with his bicycle, one of the few possessions he left Albuquerque, New Mexico, with after he spent 34 days in jail. Chudzinski ended up homeless because he couldn’t get $50 to post bond following a drunken driving arrest that was later dismissed for lack of evidence.Credit: Stuart Palley for Reveal

As for Tom Chudzinski, he won’t be voting in New Mexico come Nov. 8.

On Sept. 28, he walked out of the Albuquerque Outreach Center for the last time with his possessions, including a box containing his disassembled bicycle, and headed to the Greyhound bus station in downtown Albuquerque. One of the homeless outreach organizations had bought him a ticket to Mission Viejo, California, where he will stay with family. He was glad to be leaving the city. He reflected about the 50 bucks he couldn’t lay hands on June 3 – what it has cost him since.

“One of the bad things that happens when you go to jail is you lose the ability to function in the world,” Chudzinski said. “A whole big portion of your life stops, and it stays that way until you can put it back together.”

He is just starting that process.

“At my age,” he said, “it’s really not something I really had planned to have happen to me.”

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