LFC report: Changing pretrial detention won’t lower crime

A new report by Legislative Finance Committee analysts found that low arrest, prosecution and conviction rates may have more to do with the crime problem in Bernalillo County than releasing defendants who are awaiting trial.

The report — a memo sent on Monday to lawmakers providing a status update on crime in Bernalillo County, law enforcement and bail reform — states that while making it easier to hold certain defendants in jail pending trial would prevent some crimes, it is unlikely to have much of an impact on overall crime rates.

Furthermore, it says, Albuquerque has an “accountability gap for criminal behavior” where there is little certainty that people will get arrested, prosecuted or convicted if they commit a crime.

“Research shows the certainty of being caught is a more powerful deterrent to crime than severity of punishment,” the report states. “For the criminal justice system, this means it is important to prioritize solving crimes and securing convictions, particularly for serious offenses… Neither arrests nor convictions have tracked fluctuations in felony crimes, and in 2020 when felonies began to rise, accountability for those crimes fell.”

District Attorney Raúl Torrez’s office disputed the data analysts relied on for the report.

“It is deeply troubling that LFC analysts would fail to account for this obvious flaw in the data and give policy makers false or incomplete information,” a Torrez spokeswoman wrote in an email.

An Albuquerque Police Department spokesman said there are no simple solutions to the complex problem but noted that the report reinforces Mayor Tim Keller’s decision to create the Metro Crime Initiative, bringing multiple parts of the criminal justice system together.

“The criminal justice system is broken, and for the first time, representatives from throughout the system got together to find common ground,” Gilbert Gallegos wrote in an email.

This is not a new issue. A 2018 evaluation by the LFC had a similar finding that as violent crime began rising in the 2010s and arrests and convictions declined or stayed constant.

As homicides skyrocketed last year in Albuquerque — and appear to have increased statewide as well — lawmakers from both sides of the aisle are vowing to get tough on crime.

One of the most prominent proposals put forth in the governor’s public safety package unveiled last week would create a rebuttable presumption for pretrial detention that would make it easier to hold defendants charged with certain violent crimes.

In response to questions about the report’s finding that changing pretrial detention is unlikely to decrease crime rates, Gov. Michelle Lujan Grisham’s spokeswoman said that if “a rebuttable presumption saves even one life, prevents one family from losing a loved one — and it will — then we will support it.”

Spokeswoman Nora Meyers Sackett also reiterated that the governor’s budget proposal includes creating a $100 million fund to recruit, hire and retain public safety officers statewide.

“The governor’s support for these kinds of reforms, and crime and criminal justice reform in general, is driven by her understanding of the importance of ensuring that murderers, rapists and gun criminals are brought to justice – and the reforms we will seek to undertake will be designed to support the systems we have in effectuating justice as well as public safety,” Sackett wrote in a statement.

She also stressed the governor has made efforts to address the root causes of crime like poverty, lack of opportunity, addiction and substance abuse by raising the minimum wage, cutting taxes for working families, eliminating co-pays for behavioral health services, expanding child care assistance to thousands of families and more.

Bill filed

A bipartisan bill sponsored by Democratic Reps. Marian Matthews, Meredith Dixon and Wonda Johnson and Republican Rep. Bill Rehm, would establish which cases would qualify for a rebuttable presumption that a person is dangerous and no conditions will reasonably protect the community. The bill also confirms “the prosecuting authority’s burden of proof in pretrial detention hearings.”

House Bill 5 states that in the case of certain violent offenses the evidence that establishes probable cause for the crime should be considered proof that a defendant is dangerous unless proven otherwise.

This would apply when a person is charged with first-degree murder, human trafficking, abuse or sexual exploitation of a child, and other serious violent felonies. It also would apply when a defendant is accused of brandishing or discharging a firearm during a felony offense or inflicting great bodily harm or causing the death of another and where there is probable cause to believe a defendant committed a new felony while awaiting trial, on probation or parole or within five years of having been convicted of a crime listed above.

The LFC’s program evaluators looked at the crime and arrest data over the past three years and found violent crimes committed by defendants who were released pending trial made up 5% of all violent crimes in which the Albuquerque Police Department has made an arrest.

They also referred to a study by the University of New Mexico’s Institute for Social Research that found that of the people released pending trial, 81.9% did not pick up any new charges, 13.1% were arrested again on a non-violent charge, and 5% were arrested on a new violent charge. Nearly 80% of the defendants showed up to all of their court hearings.

However, Chief Public Defender Bennett Baur said he thinks the proposed bill is far too broad in terms of who it would apply to.

“What the bill is proposing is rather than fixing the things that aren’t going right is broadening the number of people we are going to bring into a system that is already stressed,” he said.

He said the Law Offices of the Public Defender would need to hire three times more attorneys than they already have in order to respond within a few days to every one of these cases.

“Significant legislation like this needs time for everyone to look at it and debate its merits, and we have not had that,” Baur said.

Lagging arrests and convictions

The LFC report acknowledges that the causes and solutions to crime are complex, but it points out that arrests and convictions have lagged behind increasing crime rates.

“Albuquerque’s violent crime rate rose by 85% from 2012 to 2017 and has since remained stuck at a persistently high level,” the report states. “Over the same time period, arrests for violent offenses rose by only 20%, resulting in a widening accountability gap for the most serious offenses. Closing this gap should be the key legal goal for APD and the 2nd Judicial District Attorney’s Office.”

The percentage of cases that ended with a conviction in 2011 was 80% compared to 59% in 2020, according to the report. However, it said, this could be partly explained by the implementation of case deadlines or bail reform, which resulted in fewer plea deals since people are not being held in jail and have less incentive to enter a plea in a case.

“Low conviction rates compromise the certainty of justice and suggest law enforcement agencies and prosecutors need collaborative strategies to improve communication and to build better cases and bring them to swift resolution,” the report states.

Gallegos, the APD spokesman, didn’t address questions regarding what is being done to improve clearance rates or why arrests haven’t increased, although he did reference the court-mandated reform effort the police department is under and how it must balance its allocation of resources.

Regarding the data on people who were re-arrested while their case is pending, Gallegos said the data is limited since it doesn’t take into account those who committed additional crimes without being caught.

“Chief (Harold) Medina has highlighted the lack of accountability with GPS monitoring and the refusal of the courts to release data that could show whether suspects are committing additional crimes,” Gallegos wrote in an email.

Lauren Rodriguez, a spokeswoman for the DA’s Office, said the report is not accurate and is “based on a deeply flawed interpretation of the available data.”

She pointed out that the DA’s Office did not decline to prosecute over 50% of new violent crimes, as the report states, but they did have to close a number of cases in 2021 regarding the rape kit backlog because victims have died, evidence had disappeared or the statute of limitations had run out.

As for the conviction rate, Rodriguez said the LFC is using “flawed data” from the District Court. She said the DA’s Office’s data shows an increase in that office’s conviction rate between 2017 and 2020.

She said the LFC report “fails to account for the fact that many of our convictions arise from consolidated resolutions that often result in substantial prison time even if other felony cases are dismissed.”