Bail reform advocates got a boost last week when the Tenth Circuit backed the constitutionality of recently enacted New Mexico rules allowing courts to eschew cash bail for many defendants, experts said.

The Feb. 25 decision turned back an appeal brought by a state bail bond association and a group of legislators who argued that the new system violates the Eighth Amendment rights of criminal defendants by effectively eliminating the cash-bail option for those charged with an otherwise "bailable" offense.

Criminal justice reform experts said the decision, which affirmed a district court dismissal of the proposed class action, blocked a strategic avenue for the bail bond industry that continues to oppose efforts by legislators and courts in many parts of the country to eliminate or vastly reduce the use of cash bail.

Vincent Southerland, executive director of The Center on Race, Inequality, and the Law at the New York University School of Law, called the decision a positive for critics of cash bail systems as inherently unjust, even as the court did not directly address the propriety of New Mexico's use of a "risk assessment" tool designed for courts to evaluate defendants.

The plaintiffs had argued in part that the tool was an "opaque" program for assessing nonfinancial release conditions that also "infringed upon a person's pre-trial liberty," according to the decision.

"From the perspective of people who support the use of these risk assessment instruments, I would call this a pretty clear victory because the bail bond industry has been trying to say these things supplant constitutional authority," Southerland said.

The decision stems from a case filed by the Bail Bond Association of New Mexico, five state legislators and a onetime criminal defendant just weeks after the state Supreme Court revised the state's criminal procedure rules on bail.

Those changes, put in place after a voter referendum in 2016, directed courts to do away with so-called bond schedules — predetermined bail amounts pegged to different charges — and instead consider each defendant's financial resources and set bail at the lowest possible figure to "reasonably ensure" they would come back to court.

Mirroring a model used by an increasing number of states and local courts, the New Mexico system also allows courts to release those not considered a risk without posting any bail if they can't afford it, effectively eliminating cash bail altogether for a significant percentage of defendants.

The suit had also challenged the recent adoption in a small number of New Mexico courts of the Arnold Tool, a data analytics tool that grades defendants on their likelihood to commit another crime and the likelihood that they'll return to court if released.

"Putting aside the concerns some have with how these tools operate and whether they perpetuate some problems, it does look like a good decision for the reformers more generally because this particular effort in New Mexico to eliminate cash bail has been vindicated by the court," Southerland said.

The bail association suit named the state Supreme Court and court officials as defendants, arguing in part that the court had exceeded its authority and threatened the due process rights of defendants by not offering "the historically-required option of non-excessive monetary bail."

One named plaintiff, Darlene Collins, had been charged with a felony just after the rule changes, according to case documents. Her family had the money to secure a bond, but she still was kept in jail for several days awaiting an arraignment date, which wouldn't have happened under the old system, according to the complaint.

A New Mexico federal judge last year threw out the suit, saying the association and the legislators lacked standing, and because the claims against the courts and judges were barred by immunity.

Nancy Fishman, an attorney and project director at criminal justice reform group Vera, called the plaintiffs' constitutional arguments "creative" in light of research and a growing consensus in the criminal justice community that cash bail systems keep too many people in jail based solely on their ability to pay.

In the New Mexico challenge, the plaintiffs "kind of flipped the argument to say that somehow this effort to reduce cash bail and make a more equitable system overall is somehow a violation of someone's rights" to pay to get out of jail, she said.

New Mexico is one of a small number of states that have revamped their bail systems in recent years to vastly reduce the use of cash bail and the use of finances as a determining factor at the pretrial stage, a move mirrored by a far greater number of local jurisdictions.

Inevitably, the battle over bail policy has found its way into the courts.

Last year, the Third Circuit upheld an aggressive set of bail reforms in New Jersey, while a California appellate court found the state's cash bail system violated defendants' due process and right to equal protection by keeping them in jail before trial based on their ability to pay bail.

Building on that decision, a much-debated bail reform law signed last year in California had been set to go into effect in 2019, before a coalition of bail industry organizations last fall secured enough signatures to put the issue on a statewide referendum in November 2020. The state Supreme Court is also reviewing a series of questions related to the constitutionality of cash bail.

In the New Mexico case, the district court that threw out the complaint also sanctioned one of the plaintiffs' attorneys, A. Blair Dunn, with a $14,868 sanction for having no reasonable basis for believing the association or legislators were in a position to sue the courts over constitutional arguments relevant to criminal defendants.

The court also based that decision on the inclusion of those groups as plaintiffs for the "political purpose" of voicing opposition to the new bail rules.

The Tenth Circuit also affirmed that part of the decision, calling the case "a prime example of the waste and distraction that result when attorneys disregard Rule 11's certifications" because the inclusion of the association and the legislators put their standing issues ahead of the constitutional concerns that should have been the heart of the suit.

That part of the ruling should prove valuable for reform proponents in and of itself, according to Fishman.

The bail bond association "may find another way of challenging this in New Mexico, but it doesn't look to me like they're going to be able to come back with some other argument [for standing] in this case," Fishman said.

Messages left for Dunn were not returned.

A spokesperson for the New Mexico attorney general, which represented the defendants, also did not respond to a request for comment. A representative of Professional Bail Agents of the United States, a national organization representing bail companies, said no one was immediately available to comment.

--Editing by Brian Baresch.

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