Judges make a critical decision soon after a person is charged with a crime about whether to release him or her pending trial. Under the American system of justice, there’s a presumption that defendants are innocent until proven guilty. The New Mexico Constitution (Article II, Section 13) also guarantees that those accused of a crime are entitled to be released from custody while awaiting trial, except in limited circumstances. Our pretrial system fails if low-risk nonviolent defendants who are entitled to be released are nevertheless detained in jail, simply because they cannot afford bail.

Judges place a priority on two considerations when making pretrial release or detention decisions: whether the defendant will commit a crime, particularly a violent crime, if released, and whether the person will return to court. If a defendant is to be released, judges decide whether to impose certain restrictions on the individuals, such as requiring an electronic monitor to track their location.

It runs counter to our constitution to require non-violent, low-risk offenders to spend long periods of time in jail pending trial. It is also potentially damaging to a defendant. Pretrial detention can cause defendants to lose their jobs or housing, preventing them from caring for their family or paying their bills. Researchers have found that the longer a low-risk defendant is jailed awaiting trial, the greater likelihood that person will reoffend. (Heaton, Mayson & Stevenson, 2017.)

When money bail is a condition of release, many low-risk defendants are kept in jail because they cannot afford the bail bond. At the same time, high-risk defendants—those who pose an elevated public safety risk—are often released if they can afford bail. Public safety is a serious concern for judges, who must balance fairness with protecting our communities when making pretrial detention or release decisions. To mitigate the risk to our communities and defendants, members of the state’s criminal justice system have teamed up to implement in Bernalillo County a data-driven tool called the Public Safety Assessment (PSA). Courts in San Juan County in the Eleventh Judicial District began using the PSA in early 2020.

The PSA measures the likelihood that an individual will commit a new crime—particularly a violent crime—upon release, as well as the likelihood that he or she will appear at a future court hearing. The risk assessment considers nine factors related to a defendant’s age, criminal history and current charge that research has shown accurately predict risk. The tool then generates risk scores for each defendant. This information, along with other pertinent facts from a defendant’s case, is provided to judges to assist in their pretrial decision making. While the PSA can be a helpful informational tool, it is important to note that judges always have the final say in every decision.

The PSA was developed by Arnold Ventures and more than 40 jurisdictions across the country have implemented the tool.