                                                                 I attest to the accuracy and
                                                                  integrity of this document
                                                                    New Mexico Compilation
                                                                  Commission, Santa Fe, NM
                                                                 '00'05- 09:09:19 2014.12.09

         IN THE SUPREME COURT OF THE STATE OF NEW MEXICO

Opinion Number: 2014-NMSC-038

Filing Date: November 6, 2014

Docket No. 34,531

STATE OF NEW MEXICO,

       Plaintiff-Appellee,

v.

WALTER ERNEST BROWN,

       Defendant-Appellant.

APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY
Kenneth H. Martinez, District Judge

Jody Neal-Post
Albuquerque, NM

Jorge A. Alvarado, Chief Public Defender
Jeff Rein, Assistant Public Defender
Albuquerque, NM

for Appellant

Office of the District Attorney
Guinevere Ice
Albuquerque, NM

for Appellee

                                         OPINION

DANIELS, Justice.

{1}     The Bill of Rights of the New Mexico Constitution guarantees that “[a]ll persons . . .
before conviction” are entitled to be released from custody pending trial without being
required to post excessive bail, subject to limited exceptions in which release may be denied
in certain capital cases and for narrow categories of repeat offenders. N.M. Const. art. II, §

                                              1
13. Our rules of criminal procedure provide the mechanisms through which we honor this
constitutional right to pretrial release. The rules require that a defendant be released from
custody on the least restrictive conditions necessary to reasonably assure both the
defendant’s appearance in court and the safety of the community. See Rule 5-401 NMRA.
In this case, Defendant Walter Brown presented the district court with uncontroverted
evidence demonstrating that nonmonetary conditions of pretrial release were sufficient to
reasonably assure that Defendant was not likely to pose a flight or safety risk. Despite this
evidence, the district court ordered that Defendant be held in jail unless he posted a $250,000
cash or surety bond, based solely on the nature and seriousness of the charged offense. We
conclude that the district court erred by requiring a $250,000 bond when the evidence
demonstrated that less restrictive conditions of pretrial release would be sufficient. We
therefore entered an order reversing the district court’s pretrial release order and instructing
the district court to release Defendant on appropriate nonmonetary conditions. We now issue
this precedential opinion to explain the basis for our decision, to clarify the purposes and
controlling legal principles for setting bail, and to provide guidance for future pretrial release
decisions.

I.      FACTUAL AND PROCEDURAL BACKGROUND

{2}      Defendant Walter Brown was arrested on May 26, 2011, and indicted two weeks later
on an array of charges, including first-degree felony murder and, alternatively, second-
degree murder. The district court imposed a $250,000 cash or surety bond at Defendant’s
2011 arraignment. After spending more than two years in pretrial custody awaiting trial
because he lacked the financial resources to post such a high bond, Defendant moved the
district court to review his conditions of release and to release him under the supervision of
the Second Judicial District Court’s pretrial services program with appropriate nonmonetary
conditions of release. Defendant agreed to accept conditions of release that included
monitoring by a GPS device, living with his father, making regular contact with the pretrial
services program, and maintaining employment at a local restaurant that had agreed to hire
him.

{3}     In support of his motion, Defendant provided the district court with extensive
information about his personal history and characteristics. Defendant’s nineteenth birthday
occurred two months before his arrest in this case. An only child who has always lived with
one or both of his parents, he cannot live independently due to developmental and
intellectual disabilities. He attended special education classes throughout his school years
in Albuquerque and has a second-grade comprehension level for math, writing, and reading.
Defendant dropped out of high school during his senior year and subsequently worked at
several local restaurants. In spite of his disabilities, while in pretrial detention he
successfully completed a variety of educational and counseling programs and obtained a
high school diploma.

{4}    At a hearing on his motion for release on nonmonetary conditions, Defendant
presented testimony from Dr. James Harrington, a psychologist with the district court’s

                                                2
pretrial services program who had interviewed and evaluated Defendant to determine
whether he would be an appropriate candidate for supervised pretrial release. Dr. Harrington
characterized Defendant as compliant, cooperative, and honest during the interview. Dr.
Harrington concluded that Defendant exhibits none of the factors typically correlated with
dangerousness or a risk of flight, such as prior criminal history or a history of mental illness
or substance abuse. Dr. Harrington also verified that Defendant has the capacity to
understand and comply with the proposed conditions of supervised release. Based on his
evaluation, Dr. Harrington opined that Defendant was an appropriate candidate for release
under the supervision of the pretrial services program with GPS monitoring.

{5}     The State declined to cross-examine Dr. Harrington or to present any evidence of its
own. Instead, the State simply argued that the $250,000 bond should remain in place due to
the serious nature of the criminal charges against Defendant. In support of its argument, the
State proffered an undisputed account of the factual circumstances underlying the charges.
On the day of the alleged homicide while she was highly intoxicated, Defendant’s
acquaintance Rebecca Duran got into an altercation with several people at a house. Before
leaving the house, Duran threatened to come back and “get even” with the people there.
After leaving, Duran sought out Defendant and an acquaintance named Eugene Helfer and
asked them to accompany her back to the house, where neither Duran nor Helfer nor
Defendant lived, to retrieve Duran’s personal belongings. Neither Defendant nor Helfer had
been present during the earlier altercation.

{6}     When Duran returned to the house with Defendant and Helfer, they knocked on the
front door; when there was no answer, they went around to the back of the house and entered
by opening a sliding glass door. Once inside, Duran attacked several people and hit the
victim in the head with a wrench. As explained by the State, Duran was “the one mostly
arguing” and “starting stuff.” At some point the victim pushed Helfer, who is Defendant’s
friend. Defendant reacted by stabbing the victim once with a folding pocket knife, fatally
piercing the victim’s heart.

{7}      After hearing from Defendant and the State, the district court orally denied
Defendant’s motion for release on nonmonetary conditions on the ground that Defendant’s
charge of first-degree felony murder carried a possible life sentence that would require at
least thirty years of imprisonment. The district court subsequently filed a written order
setting forth detailed factual findings. Based on the evidence presented at the motion hearing,
the district court found that the pretrial services program could fashion appropriate
conditions of release for Defendant and that Defendant could live with his father and return
to his former job if released. The district court also found that Defendant’s IQ is 70, that
Defendant has longstanding ties in the community, and that Defendant has the support of
both of his parents. The district court’s findings included Dr. Harrington’s conclusions that
Defendant has no alcohol or substance abuse issues and no pending criminal proceedings or
history of violence outside the allegations in this case. The district court found that
Defendant had “been entirely compliant for the entirety of his pretrial incarceration of over
2 years and 4 months” and had “appeared timely and without incident at all scheduled

                                               3
hearings in this case.” The district court called its findings “uncontroverted.” And the district
court explicitly found that the State had presented no information indicating that Defendant
would commit new crimes, pose a danger to anyone, or fail to appear in court if released
from custody. Despite these findings, the district court kept Defendant’s $250,000 bond in
place due to “the nature and seriousness of the alleged offense.”

{8}     After several more months of pretrial confinement, Defendant filed a second motion,
again seeking release under the supervision of the pretrial services program with appropriate
nonmonetary release conditions. At a hearing on the second motion, defense counsel
reiterated the information presented at the first hearing five months earlier and argued that
Defendant’s unique personal history made him likely to comply with conditions of release
and unlikely to commit additional crimes while released. Dr. Harrington testified again that
he deemed Defendant to be a good candidate for nonmonetary pretrial release. Defendant
also presented the testimony of Patrick Wojtowicz, the pretrial services officer likely to
supervise Defendant if released. Mr. Wojtowicz verified that Defendant could live with his
father and return to work if released. Mr. Wojtowicz confirmed that Defendant would be
capable of using public transportation to get to the pretrial services office for appointments.
And Mr. Wojtowicz agreed with Dr. Harrington that pretrial release with GPS monitoring
and supervision by the pretrial services program would be a good fit for Defendant. Without
specifically controverting the evidence presented at the hearing, the State argued against any
change to Defendant’s conditions of release on the theory that the seriousness of the charges
alone justified the requirement of a $250,000 bond for release pending trial.

{9}      After hearing from the parties, the district court judge admitted that he was
“absolutely impressed” with Defendant’s presentation but “hesitant to act upon it.” The
district court orally denied Defendant’s second motion to amend the conditions of pretrial
release. Defense counsel asked the district court judge to clarify the reasons for his decision.
The judge explained that the nature of the allegations and the potential sentence led the judge
to believe that releasing Defendant “may present a danger of either flight or to other
members of the community.” The district court did not file a written order disposing of the
second motion.

{10} After the district court denied Defendant’s second motion to amend the conditions
of release, Defendant appealed to the Court of Appeals by filing a motion under Rule 12-204
NMRA, which provides the procedure for appealing a district court’s pretrial release order.
Defendant asked the Court of Appeals to reverse the pretrial release order and to enter an
order setting appropriate conditions of release. The Court of Appeals transferred the appeal
to this Court, which has exclusive appellate jurisdiction over cases involving potential
sentences of life imprisonment. See State v. Smallwood, 2007-NMSC-005, ¶ 11, 141 N.M.
178, 152 P.3d 821 (holding that “the legislature intended for [the Supreme Court] to have
jurisdiction over interlocutory appeals in situations where a defendant may possibly be
sentenced to life imprisonment or death”).

{11}    After hearing oral arguments from the parties, this Court filed an order (1) accepting

                                               4
the transfer from the Court of Appeals, (2) reversing the district court’s pretrial release order,
and (3) remanding this case to the district court to set appropriate nonmonetary conditions
of release, including GPS monitoring and supervision by the district court’s pretrial services
program.

II.     DISCUSSION

A.      This Court Has Exclusive Jurisdiction over Defendant’s Appeal Because He
        Faces a Possible Sentence of Life Imprisonment

{12} As a preliminary matter we consider whether Defendant’s appeal should be heard by
this Court or by the Court of Appeals. The extent of this Court’s appellate jurisdiction is a
question of law that we review de novo. See Lion’s Gate Water v. D’Antonio,
2009-NMSC-057, ¶ 18, 147 N.M. 523, 226 P.3d 622.

{13} Article VI, Section 2 of the New Mexico Constitution gives this Court exclusive
appellate jurisdiction over appeals from final district court judgments “imposing a sentence
of death or life imprisonment” as well as jurisdiction over other appeals “as may be provided
by law.” In this case, Defendant appeals from an interlocutory pretrial release order, not a
final judgment. See Tijerina v. Baker, 1968-NMSC-009, ¶ 8, 78 N.M. 770, 438 P.2d 514 (per
curiam) (concluding that a pretrial release order is interlocutory); State v. David, 1984-
NMCA-119, ¶ 13, 102 N.M. 138, 692 P.2d 524 (explaining that an “interlocutory bail
determination is not a final judgment”).

{14} Defendant’s right to file this interlocutory appeal arises under NMSA 1978, Section
39-3-3(A)(2) (1972), which permits an appeal from a district court “order denying relief on
a petition to review conditions of [pretrial] release.” We have held that Section 39-3-3(A),
in conjunction with Article VI, Section 2 of the New Mexico Constitution, gives this Court
exclusive appellate jurisdiction over interlocutory appeals in criminal cases where the
defendant faces a possible sentence of life imprisonment or death. See Smallwood, 2007-
NMSC-005, ¶¶ 6-11. In Smallwood, we identified Section 39-3-3 as “the one statute dealing
specifically with appellate jurisdiction over interlocutory appeals in criminal cases” and
noted that the statute permits a defendant to appeal to either “‘the supreme court or court of
appeals, as appellate jurisdiction may be vested by law in these courts.’” Smallwood, 2007-
NMSC-005, ¶ 9 (quoting Section 39-3-3(A)). Because the New Mexico Constitution vests
this Court with exclusive appellate jurisdiction over final district court judgments imposing
a sentence of life imprisonment or death, we concluded that Section 39-3-3(A) confers “this
Court with jurisdiction over a criminal defendant’s interlocutory appeal in cases where a
sentence of life imprisonment or death could be imposed.” Smallwood, 2007-NMSC-005,
¶ 10.

{15} In this case, Defendant is charged with first-degree felony murder, an offense that
carries a possible sentence of life imprisonment. See NMSA 1978, § 30-2-1(A) (1994);
NMSA 1978, § 31-18-14 (2009). We therefore hold that this Court has exclusive appellate

                                                5
jurisdiction to consider Defendant’s appeal.

{16} Although this Court has exclusive appellate jurisdiction to hear Defendant’s appeal,
Defendant filed his appeal in the Court of Appeals. It appears that an inadvertent omission
in our procedural rules may have caused Defendant’s error. Under Rule 5-401(G), a person
who has been unable “to meet the bail set[] shall, upon motion, be entitled to have a hearing
to review the amount of bail set.”1 And if a person “continues to be detained” after such a
hearing “because of a failure to meet a condition imposed,” then that person may appeal “to
the Supreme Court or Court of Appeals, as jurisdiction may be vested by law, in accordance
with the Rules of Appellate Procedure.” Rule 5-405(A) NMRA (emphasis added).

{17} And although Rule 5-405(A) recognizes this Court’s appellate jurisdiction to review
certain pretrial release orders, Rule 12-204 NMRA of the Rules of Appellate Procedure
instructs litigants to initiate such appeals by filing a motion in the Court of Appeals. See
Rule 12-204(A) (“An appeal provided for by NMSA 1978, § 39-3-3A(2), and Rule 5-405
of the Rules of Criminal Procedure shall be taken by filing a motion with the clerk of the
court of appeals within ten (10) days after the decision of the district court and serving a
copy on the district attorney and the appellate division of the attorney general.” (emphasis
added)). We conclude that Rule 12-204 should be amended to reflect this Court’s exclusive
jurisdiction over interlocutory appeals from pretrial release orders in cases where the
defendant faces a possible sentence of life imprisonment or death, and we ask our Rules of
Appellate Procedure Committee to draft proposed rule amendments for this Court’s
consideration.

B.     The District Court Failed to Impose the Least Restrictive Conditions of Release
       That Would Reasonably Assure Defendant’s Appearance in Court and the
       Safety of the Community

{18} We now turn to the merits of Defendant’s appeal. Defendant argues that the district
court erred by disregarding the undisputed evidence concerning his suitability for pretrial
release and by basing its pretrial release order solely on the nature of the charges, excluding
consideration of other factors that the district court must consider under Rule 5-401(C) of
the Rules of Criminal Procedure for the District Courts. The State has maintained that a
$250,000 bond is justified by the nature and seriousness of the charges in this case. In order
to fully explain why we set aside the district court’s pretrial release order in this case, we
begin with an abbreviated review of the origins and history of bail and an examination of the
bail provisions in the New Mexico Constitution and our rules of criminal procedure.



       1
        The term “bail” as used in this opinion may refer to either (1) the “process by which
a person is released from custody either on the undertaking of a surety or on his or her own
recognizance” or (2) the “security such as cash, a bond, or property” that a person must
provide in order to gain such release. Black’s Law Dictionary 167 (10th ed. 2014).

                                               6
1.      Constitutional Right to Bail in New Mexico

{19} The New Mexico Constitution affords criminal defendants a right to bail in Article
II, Section 13, which provides that “[a]ll persons shall, before conviction be bailable by
sufficient sureties” and that “[e]xcessive bail shall not be required.” These provisions were
first incorporated into the written law of territorial New Mexico when Brigadier General
Stephen Kearny promulgated the Kearny Bill of Rights in 1846. See Kearny Bill of Rights,
cl. 9 (1846, reprinted in Vol. 1 of NMSA 1978) (“[A]ll persons shall be bailed by sufficient
sureties, except in capital offenses where proof of guilt is evident.”); Kearny Bill of Rights,
cl. 10 (“[E]xcessive bail shall not be required.”). Article II, Section 13 enshrines the
principle that a person accused of a crime is entitled to retain personal freedom “until
adjudged guilty by the court of last resort.” Tijerina, 1968-NMSC-009, ¶ 9; see Bandy v.
United States, 81 S. Ct. 197, 197 (1960) (“The fundamental tradition in this country is that
one charged with a crime is not, in ordinary circumstances, imprisoned until after a judgment
of guilt.”).

{20} Notwithstanding the presumption that all persons are bailable pending trial, the right
to bail “is not absolute under all circumstances.” Tijerina, 1968-NMSC-009, ¶ 9. Article II,
Section 13 contains two exceptions that restrict the right to bail as to certain persons. First,
the district court may deny bail altogether to a person charged with a capital offense if “the
proof is evident or the presumption great.” N.M. Const. art. II, § 13. Second, the district
court may deny bail

       for a period of sixty days after the incarceration of the defendant by an order
       entered within seven days after the incarceration, in the following instances:
                A.     the defendant is accused of a felony and has previously been
       convicted of two or more felonies, within the state, which felonies did not
       arise from the same transaction or a common transaction with the case at bar;
                B.     the defendant is accused of a felony involving the use of a
       deadly weapon and has a prior felony conviction, within the state. The period
       for incarceration without bail may be extended by any period of time by
       which trial is delayed by a motion for a continuance made by or on behalf of
       the defendant.

Id. A court cannot refuse to set bail and detain a defendant pending trial under either of these
exceptions without first providing the defendant with adequate procedural due process
protections, including the right to counsel, notice, and an opportunity to be heard. See David,
1984-NMCA-119, ¶ 23 (citing Tijerina, 1968-NMSC-009).

{21} Once released, a defendant’s continuing right to pretrial liberty is conditioned on the
defendant’s appearance in court, compliance with the law, and adherence to the conditions
of pretrial release imposed by the court. See Rule 5-403(A) NMRA (providing that the court
may revoke release “upon a showing that the defendant has been indicted or bound over for
trial on a charge constituting a serious crime allegedly committed while released pending

                                               7
adjudication of a prior charge”); State v. Segura, 2014-NMCA-037, ¶ 8, 321 P.3d 140
(explaining that the court may revoke bail to ensure “the proper administration of justice”
or “for violation of a condition of pretrial release” (internal quotation marks and citation
omitted)). Accordingly, if a defendant fails to appear in court, commits additional crimes,
or violates conditions of pretrial release, the court may, upon notice and hearing, revoke the
defendant’s release and remand the defendant into custody. See Tijerina, 1968-NMSC-009,
¶ 11 (noting that due process requires “notice and an opportunity to be heard before bond can
be revoked and a defendant remanded to custody”); Segura, 2014-NMCA-037, ¶ 23
(concluding that the state has the burden of establishing facts to support a revocation of bail
and that the defendant has a due process right to contest the state’s evidence). But cf. State
v. Romero, 2006-NMCA-126, ¶¶ 1-2, 140 N.M. 524, 143 P.3d 763 (holding that a bail bond
may be forfeited for failure to appear but not for violation of other conditions of release),
aff’d, 2007-NMSC-030, ¶ 6, 141 N.M. 733, 160 P.3d 914. Under all other circumstances, the
New Mexico Constitution requires that “[a]ll persons shall . . . be bailable by sufficient
sureties” and that “[e]xcessive bail shall not be required.” N.M. Const. art. II, § 13.

2.     Origins and History of Bail in England

{22} The right to pretrial release set forth in the New Mexico Constitution has roots that
extend back to medieval England, where bail originated “as a device to free untried
prisoners.” Daniel J. Freed & Patricia M. Wald, Bail in the United States: 1964 1 (1964); see
IV William Blackstone, Commentaries on the Laws of England in Four Books 1690 (Rees
Welsh & Co. 1902) (1769) (“By the ancient common law, before and since the [Norman]
conquest, all felonies were bailable, till murder was excepted by statute; so that persons
might be admitted to bail before conviction almost in every case.” (footnotes omitted)). See
generally William F. Duker, The Right to Bail: A Historical Inquiry, 42 Alb. L. Rev. 33, 34-
66 (1977) (describing the origins and history of bail in England); Elsa de Haas, Antiquities
of Bail 128 (1940) (concluding that the “root idea of the modern right to bail” came from
“tribal custom on the continent of Europe”).

{23} During the Anglo-Saxon period in England before the Norman conquest, the penalty
for most crimes was a monetary fine paid as compensation to the victim. See June Carbone,
Seeing Through the Emperor’s New Clothes: Rediscovery of Basic Principles in the
Administration of Bail, 34 Syracuse L. Rev. 517, 519-20 (1983). Under this system of
justice, the sheriff often required the accused to secure a third party, or surety, to guarantee
the appearance of the accused for trial and the payment of the fine upon conviction. See id.
at 520; see also Bail: An Ancient Practice Reexamined, 70 Yale L.J. 966, 966 (1961). The
amount of money pledged as bail was identical to the penalty prospect upon a conviction,
and the surety was required to pay the fine if the accused failed to appear for trial. Carbone,
supra, at 520. This system of bail ensured victim compensation and deterred pretrial flight
because the surety bore financial responsibility for payment of the penalty and had an
incentive to produce the accused for trial. Id.

{24}   Following the Norman conquest of 1066, capital and corporal punishment began

                                               8
gradually to replace monetary fines as the penalty for most offenses, and accused persons
faced longer delays between accusation and trial as they waited for traveling judges to arrive
and dispense local justice. See id. at 519, 521; see also Freed & Wald, supra, at 1 (“Disease-
ridden jails and delayed trials by traveling justices necessitated an alternative to holding
accused persons in pretrial custody.”). The development of corporal and capital punishment
complicated the use of bail because the amount of money pledged no longer correlated
directly to the potential punishment. Carbone, supra, at 522. The endowment of local sheriffs
with discretion in setting bail led to rampant corruption and abuse. See United States v.
Edwards, 430 A.2d 1321, 1326 (D.C. Cir. 1981) (en banc) (explaining that sheriffs
“exercised a broad and ill-defined discretionary power to bail” prisoners and that this “power
was widely abused by sheriffs who extorted money from individuals entitled to release
without charge” and who “accepted bribes from those who were not otherwise entitled to
bail”).

{25} In response to historical abuses, the common law right to bail was codified into
written English law. In 1215, the principles that an accused is presumed innocent and
entitled to personal liberty pending trial were incorporated into the Magna Carta, which
proclaimed that “no freeman shall be taken or imprisoned . . . [except by] the judgment of
his peers or by the law of the land.” Kennedy v. Mendoza-Martinez, 372 U.S. 144, 186
(1963) (internal quotation marks and citation omitted). In 1275, the English Parliament
enacted the Statute of Westminster, which defined bailable offenses and provided criteria for
determining whether a particular person should be released, including the strength of the
evidence against the accused and the accused’s criminal history. See Bail: An Ancient
Practice Reexamined, supra, at 966; Carbone, supra, at 523-26. In 1679, Parliament adopted
the Habeas Corpus Act to ensure that an accused could obtain a timely bail hearing; and in
1689, Parliament enacted an English Bill of Rights that prohibited excessive bail. See
Carbone, supra, at 528. In crossing the Atlantic, American colonists carried concepts
embedded in these documents that became the foundation for our current system of bail. See
id. at 529.

3.     Bail in the United States

{26} The presumption that defendants should be released pending trial became widely
adopted throughout the United States in both the state and federal systems. See Bail: An
Ancient Practice Reexamined, supra, at 967. One commentator who surveyed the bail laws
in each of the states found that forty-eight states have protected, by constitution or statute,
a right to bail “by sufficient sureties, except for capital offenses when the proof is evident
or the presumption great.” Matthew J. Hegreness, America’s Fundamental and Vanishing
Right to Bail, 55 Ariz. L. Rev. 909, 916 (2013). States modeled these provisions on the
Pennsylvania Constitution of 1682, which provided that “‘all Prisoners shall be Bailable by
Sufficient Sureties, unless for capital Offenses, where proof is evident or the presumption
great.’” See Carbone, supra, at 531-32 (“[T]he Pennsylvania provision became the model
for almost every state constitution adopted after 1776.”).


                                              9
{27} At the federal level, the first United States Congress established a statutory right to
bail by enacting the Judiciary Act of 1789, which provided an absolute right to bail in
noncapital cases and bail at the discretion of the judge in capital cases. See Judiciary Act of
1789, ch. 20, § 33, 1 Stat. 73, 91; see also Caleb Foote, The Coming Constitutional Crisis
in Bail: I, 113 U. Pa. L. Rev. 959, 971 (1965) (explaining that the “bail problem” was before
the first Congress in the spring and summer of 1789). The first Congress also proposed that
the states adopt the Eighth Amendment to the United States Constitution, which, like the
New Mexico Constitution and English Bill of Rights, prohibits excessive bail. See U.S.
Const. amend. VIII; N.M. Const. art. II, § 13; see also Browning-Ferris Indus. of Vt., Inc.
v. Kelco Disposal, Inc., 492 U.S. 257, 294 (1989) (O’Connor, J., concurring in part and
dissenting in part) (explaining that the first Congress based the Eighth Amendment “on
Article I, § 9, of the Virginia Declaration of Rights of 1776, which had in turn adopted
verbatim the language of § 10 of the English Bill of Rights”). But unlike the New Mexico
Constitution, the United States Constitution does not contain an explicit right to bail clause
and guarantees only that “[e]xcessive bail shall not be required.” U.S. Const. amend. VIII;
see Carlson v. Landon, 342 U.S. 524, 545-46 (1952) (explaining that the United States
Constitution can be construed only as a prohibition against excessive bail in those cases in
which it is proper to grant bail because the Eighth Amendment does not provide a “right to
bail”). The United States Supreme Court has held that “[b]ail set at a figure higher than an
amount reasonably calculated to fulfill [the] purpose [of adequately assuring the presence
of the accused] is ‘excessive’ under the Eighth Amendment.” Stack v. Boyle, 342 U.S. 1, 5
(1951). As the Court explained,

        From the passage of the Judiciary Act of 1789, 1 Stat. 73, 91, to the present
        Federal Rules of Criminal Procedure, Rule 46(a)(1), 18 U.S.C.A., federal law
        has unequivocally provided that a person arrested for a non-capital offense
        shall be admitted to bail. This traditional right to freedom before conviction
        permits the unhampered preparation of a defense, and serves to prevent the
        infliction of punishment prior to conviction. See Hudson v. Parker, 1895, 156
        U.S. 277, 285 . . . . Unless this right to bail before trial is preserved, the
        presumption of innocence, secured only after centuries of struggle, would
        lose its meaning.

Id. at 4.

{28} Despite the ancient origins and broad recognition of the right to bail in this country,
studies of the administration of bail in the twentieth century raised a number of concerns
about its widespread misuse. See Field Study, A Study of the Administration of Bail in New
York City, 106 U. Pa. L. Rev. 693 (1958); Note, Compelling Appearance in Court: The
Administration of Bail in Philadelphia, 102 U. Pa. L. Rev. 1031 (1954); Arthur L. Beeley,
The Bail System in Chicago (1927). See generally Wayne H. Thomas, Jr., Bail Reform in
America 3-19 (1976); Ronald Goldfarb, Ransom (1965); Foote, supra; Freed & Wald, supra,
at 9-21. The studies all concluded that the system of money bail in the United States
discriminates against indigent defendants who lack the financial resources to post bail. See,

                                              10
e.g., Thomas, supra, at 11, 19 (“The American system of bail allows a person arrested for
a criminal offense the right to purchase his release pending trial. Those who can afford the
price are released; those who cannot remain in jail. . . . The requirement that virtually every
defendant must post bail causes discrimination against defendants who are poor.”).
Researchers also found that defendants incarcerated pending trial were held “under harsher
conditions than those applied to convicted prisoners,” even though many of those defendants
ultimately were either acquitted or given no sentence of imprisonment upon the disposition
of their cases. Foote, supra, at 960.

{29} These concerns were accompanied by criticism of the growing role commercial bail
bond agents played in determining whether defendants would be released pending trial. See
Notes, Preventive Detention Before Trial, 79 Harv. L. Rev. 1489, 1490 (1966). No
commercial bail bond industry existed in medieval England, where pretrial release was
conditioned upon the accused securing a reputable friend or relative to personally assure the
accused’s appearance for trial. See Thomas, supra, at 11-12; see also F.E. Devine,
Commercial Bail Bonding 5 (1991) (explaining that sureties in eighteenth-century England
“were viewed as actively exercising a friendly custody of the accused”). To the contrary, the
English judicial system has always found the concept of commercial sureties repugnant. See
generally Devine, supra, at 37 (explaining that, in the nineteenth century, the English
common law treated an agreement to pay a surety for bail as an “unenforceable illegal
contract contrary to the public interest” and, in the twentieth century, as a “crime of
conspiracy to effect a public mischief” or a crime of “conspiracy to obstruct the court of
justice”); id. at 45 (explaining that the English Bail Act of 1976 sets forth criminal penalties
for agreeing to indemnify a surety in a criminal proceeding, effectively barring any
commercial bail bond industry). England is not alone in its rejection of the commercial bail
bond industry. “Viewed from an international perspective, the commercial bail bonding
system has provoked an almost universally unfavorable reaction” in common law judicial
systems, and “only one country, the Philippines, has adopted a commercial bail bonding
system similar to the American system.” Id. at 15.

{30} Contrary to this international trend, a commercial bail bond industry emerged in the
early United States. Contributing factors included the near-absolute right to bail set forth in
the Judiciary Act of 1789 and in most state constitutions, the unavailability of friends and
relatives who might serve as personal sureties, and the ability of defendants to flee into the
vast American frontier. See Thomas, supra, at 11-12. By the middle of the twentieth century
in the United States, commercial bail bond companies who charged defendants a
nonrefundable fee for their services, typically ten percent of the bond amount, frequently
posted money bail. See id. at 11; Freed & Wald, supra, at 22-24.

{31} A commercial bail bond may enable a defendant to post money bail required by the
court as additional assurance that the defendant will appear for trial. See Stack v. Boyle, 342
U.S. at 5 (“Like the ancient practice of securing the oaths of responsible persons to stand as
sureties for the accused, the modern practice of requiring a bail bond or the deposit of a sum
of money subject to forfeiture serves as additional assurance of the presence of an

                                              11
accused.”). But critics argued that the commercial bail bond industry inappropriately
delegated to private agents the power to determine which defendants get released. See
Preventive Detention Before Trial, supra, at 1490. As one federal judge observed, the effect
of the commercial bail bond industry

        is that the professional bondsmen hold the keys to the jail in their pockets.
        They determine for whom they will act as surety—who in their judgment is
        a good risk. The bad risks, in the bondsmen’s judgment, and the ones who are
        unable to pay the bondsmen’s fees, remain in jail. The court [is] relegated to
        the relatively unimportant chore of fixing the amount of bail.

Pannell v. United States, 320 F.2d 698, 699 (D.C. Cir. 1963) (Wright, J., concurring).

{32} Some fifty years ago, widespread concerns about problems and inequities in bail
practices sparked national interest in establishing new bail procedures and pretrial programs
that would treat the rich and the poor more equitably by facilitating pretrial release without
the requirement of monetary bonds. The modern bail reform movement began with the
Manhattan Bail Project, conducted in the 1960s by the Vera Foundation in New York City.
See Thomas, supra, at 3, 20-27; Goldfarb, supra, at 150-72. Through the Manhattan Bail
Project, defendants were interviewed prior to their first appearance in court to evaluate
whether they were good candidates for pretrial release on recognizance; that is, release “on
one’s honor pending trial.” Goldfarb, supra, at 153-54. The standard interview questions
included an inquiry into a defendant’s personal background, community ties, and criminal
history. Id. The interviewer scored a defendant’s answers using a point-weighing system and
verified answers for accuracy, usually over the telephone with references the defendant
provided. Id. at 154-55, 174-75. The interviewers gave the resulting information to the court
and made recommendations regarding which defendants should be released on recognizance.
Id. at 155. The Manhattan Bail Project proved successful. During the first three years of the
experiment, defendants released on recognizance at the recommendation of the Vera
Foundation were about three times more likely to appear for trial than defendants in control
groups deemed eligible for release on recognizance who instead were released on money
bail. Id. at 155, 157. The Manhattan Bail Project “showed that defendants could be
successfully released pretrial without the financial guarantee of a surety bail agent if verified
information concerning their stability and community ties were presented to the court.”
Thomas H. Cohen & Brian A. Reaves, Pretrial Release of Felony Defendants in State Courts
4 (U.S. Dep’t of Justice Nov. 2007). The success of the Manhattan Bail Project increased
national interest in bail reform and triggered the creation of pretrial services programs across
the country. See Timothy R. Schnacke et al., Pretrial Justice Inst., The History of Bail and
Pretrial Release 10 (2010); see also Marie VanNostrand et al., Our Journey Toward Pretrial
Justice, 71 Fed. Probation, no. 2, 2007, 20, 20 (discussing pretrial services agencies “as
providers of the information necessary for judicial officers to make the most appropriate bail
decision” and to “provide monitoring and supervision of defendants released with conditions
pending trial”).


                                               12
{33} Driven by the same concerns that inspired the Manhattan Bail Project, Congress
enacted the Bail Reform Act of 1966, the first major reform of the federal bail system since
the Judiciary Act of 1789. See Bail Reform Act of 1966, Pub. L. No. 89-465, 80 Stat. 214
(repealed 1984). The stated purpose of the Bail Reform Act of 1966 was “to assure that all
persons, regardless of their financial status, shall not needlessly be detained pending their
appearance to answer charges . . . when detention serves neither the ends of justice nor the
public interest.” Id. Sec. 2. The Act included the following key provisions to govern pretrial
release in noncapital criminal cases in federal court: (1) a presumption of release on personal
recognizance unless the court determined that such release would not reasonably assure the
defendant’s appearance in court, (2) the option of conditional pretrial release under
supervision or other terms designed to decrease the risk of flight, and (3) a prohibition on
the use of money bail in cases where nonfinancial release options such as supervisory
custody or restrictions on “travel . . . or place of abode” are sufficient to reasonably assure
the defendant’s appearance. See id. Sec. 3, § 3146(a); see also VanNostrand et al., supra, at
20 (explaining that the 1966 Act “established a presumption of release by the least restrictive
conditions, with an emphasis on non-monetary terms of bail”). By emphasizing nonmonetary
terms of bail, Congress attempted to remediate the array of negative impacts experienced by
defendants who were unable to pay for their pretrial release, including the adverse effect on
defendants’ ability to consult with counsel and prepare a defense, the financial impacts on
their families, a statistically less-favorable outcome at trial and sentencing, and the fiscal
burden that pretrial incarceration imposes on society at large. See H.R. Rep. No. 89-1541
(1966), reprinted in 1966 U.S.C.C.A.N. 2293, 2299.

{34} Congress again revised federal bail procedures with the Bail Reform Act of 1984,
enacted as part of the Comprehensive Crime Control Act of 1984. See Bail Reform Act of
1984, Pub. L. No. 98-473, § 202, 98 Stat. 1837, 1976 (codified at 18 U.S.C. §§ 3141-3150
(2012)). The legislative history of the 1984 Act explains that Congress wanted to “address
the alarming problem of crimes committed by persons on release” and to “give the courts
adequate authority to make release decisions that give appropriate recognition to the danger
a person may pose to others if released.” S. Rep. 98-225, at 3 (1983), reprinted in 1984
U.S.C.C.A.N. 3182, 3185. The 1984 Act, as amended, retains many of the key provisions
of the 1966 Act but “allows a federal court to detain an arrestee pending trial if the
Government demonstrates by clear and convincing evidence after an adversary hearing that
no release conditions ‘will reasonably assure . . . the safety of any other person and the
community.’” United States v. Salerno, 481 U.S. 739, 741 (1987) (omission in original)
(quoting the Bail Reform Act of 1984) (upholding the preventive detention provisions in the
1984 Act); see also 18 U.S.C. § 3142(a) (providing generally the current federal procedure
for ordering either release or detention of a defendant pending trial), held unconstitutional
on other grounds by, e.g., United States v. Karper, 847 F. Supp. 2d 350 (N.D.N.Y. 2011).

{35} Twentieth-century advances in pretrial justice notwithstanding, the administration
of bail in the United States remains problematic. See John S. Goldkamp, Judicial
Responsibility for Pretrial Release Decisionmaking and the Information Role of Pretrial
Services, 57 Fed. Probation 28, 30 (1993) (“Even after decades of bail reform, serious

                                              13
questions about the fairness and effectiveness of pretrial release in the United States have
not been resolved.”). A recent United States Department of Justice report, which provides
statistics about state court felony defendants in the nation’s seventy-five largest counties
between 1990 and 2004, reflects some of the enduring inequalities in our nation’s system of
bail. See Cohen & Reaves, supra. The report demonstrates that, in the last two decades,
states have again increased their reliance on commercial surety bonds while decreasing the
use of personal recognizance releases. See id. at 1-2 (“Beginning in 1998, financial pretrial
releases, requiring the posting of bail, were more prevalent than non-financial releases.”).
As a result, the number of pretrial inmates in jail populations has grown “at a much faster
pace than sentenced inmates, despite falling crime rates.” Kristin Bechtel et al., Pretrial
Justice Inst., Dispelling the Myths: What Policy Makers Need to Know About Pretrial
Research 1-2 (Nov. 2012). Most of the defendants who remain in custody pending trial stay
in jail because they cannot afford the bail set by the court, not because they have been denied
bail altogether. See Cohen & Reaves, supra, at 1 (“Among [felony] defendants detained until
case disposition, 1 in 6 had been denied bail and 5 in 6 had bail set with financial conditions
required for release that were not met.”). “Hispanics were less likely than non-Hispanic
defendants to be released, and males were less likely than females to be released.” Id.
Twenty percent of these detained defendants “eventually had their case dismissed or were
acquitted,” so many of them could have avoided imprisonment altogether if only they had
the resources to post bail. Id. at 7.

{36} To address the persistent inequities and inefficiencies in our current administration
of bail, a number of national entities have promulgated standards and best practices for
pretrial release programs. See, e.g., Am. Bar Ass’n, ABA Standards for Criminal Justice:
Pretrial Release (3d ed. 2007) (hereinafter ABA Standards); Nat’l Ass’n of Pretrial Servs.
Agencies, Standards on Pretrial Release (3d ed. 2004); Nat’l Dist. Attorneys Ass’n,
National Prosecution Standards, Standards 4-4.1 to 4-4.5, at 56-57 (3d ed. 2009). Renewed
interest in pretrial justice has led some commentators to suggest that the criminal justice
system in the United States has begun to experience a new wave of bail reform in the twenty-
first century. See Bechtel et al., supra, at 2 n.1; Schnacke et al., supra, at 21-27 (noting that
“jurisdictions across the United States have become significantly more interested in the topic
of bail and pretrial release”).

4.      The New Mexico Pretrial Release Rules

{37} The New Mexico Rules of Criminal Procedure provide the mechanism through which
a person may effectuate the right to pretrial release afforded by Article II, Section 13 of the
New Mexico Constitution. See Rule 5-401 (providing procedures for district courts); Rule
6-401 NMRA (providing procedures for magistrate courts); Rule 7-401 NMRA (providing
procedures for metropolitan court); Rule 8-401 NMRA (providing procedures for municipal
courts). New Mexico modeled its bail rules, which were first adopted in 1972, on the federal
Bail Reform Act of 1966. See NMSA 1978, Crim. P. Rule 22 (Repl. Pamp. 1980; including
the May 1972 New Mexico Supreme Court order); see also Committee commentary to Rule
5-401 (explaining that the rule is modeled on the Bail Reform Act of 1966). Like the Bail

                                               14
Reform Act of 1966, the New Mexico bail rules establish a presumption of release by the
least restrictive conditions and emphasize methods of pretrial release that do not require
financial security. See Rule 5-401(A); State v. Gutierrez, 2006-NMCA-090, ¶ 17, 140 N.M.
157, 140 P.3d 1106 (recognizing “that the purpose of the Federal Bail Reform Act of 1966,
from which our rule is derived, was to encourage more releases on personal recognizance”).

{38} Originally, the only valid purpose of bail in New Mexico was to ensure the
defendant’s appearance in court. See Crim. P. Rule 22(a) (requiring the judge to make a
pretrial release decision that would “reasonably assure the appearance of the person as
required”); see also State v. Eriksons, 1987-NMSC-108, ¶ 6, 106 N.M. 567, 746 P.2d 1099
(“[T]he purpose of bail is to secure the defendant’s attendance to submit to the punishment
to be imposed by the court.”). To further incentivize appearance in court, in the early 1970s
the Legislature granted courts statutory authority to order forfeiture of bail upon a
defendant’s failure to appear, see NMSA 1978, § 31-3-2(B)(2) (1972, as amended through
1993), and enacted separate criminal penalties for failure to appear, see NMSA 1978, § 31-3-
9 (1973, as amended through 1999). Following recognition in the federal Bail Reform Act
of 1984 that public safety is a valid consideration in pretrial release decisions, this Court
amended our rules to require judges to consider not only the defendant’s flight risk but also
the potential danger that might be posed by the defendant’s release to the community in
determining which conditions of release should be fashioned. See Rule 5-401 NMRA (1990)
(prescribing that judges consider “the appearance of the person as required” and “the safety
of any other person and the community”).

{39} If a person is bailable under Article II, Section 13 of the New Mexico Constitution,
our rules of criminal procedure require the trial court to set the least restrictive of the bail
options and release conditions that “will reasonably assure appearance of the person as
required” and “the safety of any other person and the community.” Rule 5-401(A)-(D). In
doing so, the court must evaluate the available information about the defendant and the
extent of the flight risk and safety concerns posed by the defendant. To guide the courts in
accomplishing this task, the rule provides a list of factors that the court must take into
account:

              (1)     the nature and circumstances of the offense charged, including
       whether the offense is a crime of violence or involves a narcotic drug;
              (2)     the weight of the evidence against the person;
              (3)     the history and characteristics of the person, including:
                      (a)     the person’s character and physical and mental
       condition;
                      (b)     the person’s family ties;
                      (c)     the person’s employment status, employment history
       and financial resources;
                      (d)     the person’s past and present residences;
                      (e)     the length of residence in the community;
                      (f)     any facts tending to indicate that the person has strong

                                              15
       ties to the community;
                      (g)     any facts indicating the possibility that the person will
       commit new crimes if released;
                      (h)     the person’s past conduct, history relating to drug or
       alcohol abuse, criminal history and record concerning appearance at court
       proceedings; and
                      (i)     whether, at the time of the current offense or arrest, the
       person was on probation, on parole, or on other release pending trial,
       sentencing, appeal or completion of an offense under federal, state or local
       law;
                (4)   the nature and seriousness of the danger to any person or the
       community that would be posed by the person’s release; and
                (5)   any other facts tending to indicate the person is likely to
       appear.

Rule 5-401(C).

{40} Rule 5-401 prioritizes five increasingly exacting bail options pending trial: (1)
release on the defendant’s personal recognizance; (2) release upon the execution of an
unsecured appearance bond; (3) release upon the execution of an appearance bond
accompanied by a cash deposit to the court of a specified percentage of the total amount set
for bail; (4) release upon the execution of a bond secured by property belonging to either the
defendant or an unpaid surety; and (5) release upon either execution of a bond by a licensed
bail bond agent or execution of an appearance bond by the defendant accompanied by a cash
deposit of one hundred percent of the amount set for bail. See Rule 5-401(A)-(B). The trial
court must consider this hierarchy of release options in the order set forth in the rule,
beginning with the least restrictive option. Id.; see Gutierrez, 2006-NMCA-090, ¶¶ 9-10
(specifying that the options “‘are set forth in the order of priority [in which] they are to be
considered by the judge’” (quoting Rule 5-401 Committee commentary)). Whenever
possible, the court should dispense with the requirement of any financial security and should
release the defendant either on the defendant’s “personal recognizance or upon the execution
of an unsecured appearance bond in an amount set by the court.” Rule 5-401(A). But if the
court makes specific written findings demonstrating that nonfinancial release options “will
not reasonably assure the appearance of the person as required or will endanger the safety
of any other person or the community,” the court may require the defendant to execute one
of the types of secured bonds enumerated in the rule. Rule 5-401(B).

{41} In addition to choosing an appropriate bail option, the trial court should consider
whether to impose additional nonmonetary conditions to limit and monitor the defendant’s
conduct while released pending trial. See Rule 5-401(D). The court may condition the
defendant’s continued pretrial release on refraining from further criminal conduct while
awaiting trial. See Rule 5-401(D)(1). Rule 5-401(D)(2) sets forth a range of other potential
conditions that the court may consider and instructs the court to order the least restrictive
condition or combination of conditions that “will reasonably assure the appearance of the

                                              16
person as required, the safety of any other person and the community and the orderly
administration of justice.” The court has a duty to tailor the conditions of pretrial release to
the needs and risks posed by each individual defendant. See id. For example, if a defendant
is charged with a crime of violence against a household member, the additional conditions
might include a limitation on the possession of weapons and a requirement that the defendant
avoid contact with the alleged victim or witnesses. See Rule 5-401(D)(2)(e), (h). Or, if the
defendant is charged with a crime involving controlled substances, the court might order the
defendant to undergo drug testing and substance abuse treatment. See Rule 5-401(D)(2)(j)-
(k).

5.     The District Court Requirement of a Monetary Bond in This Case Was
       Unsupported by Evidence and Contrary to Law

{42} In brief, a pretrial release determination under the New Mexico Constitution and our
rules of criminal procedure includes three main inquiries. First, is the defendant bailable
pending trial, or should the defendant be detained under one of the exceptions in Article II,
Section 13 of the New Mexico Constitution? Next, if bailable, which of the release options
stated in Rule 5-401 is the least restrictive in reasonably assuring appearance while
maintaining the safety of the community? See Rule 5-401(A)-(B). And finally, should any
additional nonmonetary conditions of release be imposed to place limitations on the
defendant’s conduct while released pending trial? See Rule 5-401(D).

{43} This Court will reverse a district court’s pretrial release decision “only if it is shown
that the decision: (1) is arbitrary, capricious or reflects an abuse of discretion; (2) is not
supported by substantial evidence; or (3) is otherwise not in accordance with law.” Rule 12-
204(C). Although this Court may set aside a pretrial release order for any one of these three
reasons, we conclude in this case that reversal is warranted on all three grounds. See N.M.
Attorney Gen. v. N.M. Pub. Regulation Comm’n, 2013-NMSC-042, ¶ 10, 309 P.3d 89
(explaining that a decision “is arbitrary and capricious if it is unreasonable or without a
rational basis, when viewed in light of the whole record” (internal quotation marks and
citation omitted)); State v. Cebada, 1972-NMCA-140, ¶ 9, 84 N.M. 306, 502 P.2d 409 (“An
abuse of discretion occurs when the court exceeds the bounds of reason, all the
circumstances before it being considered.”). “Substantial evidence is such relevant evidence
that a reasonable mind would find adequate to support a conclusion.” State ex rel. King v.
B&B Inv. Group, Inc., 2014-NMSC-024, ¶ 12, 329 P.3d 658 (internal quotation marks and
citation omitted).

{44} The district court necessarily determined that Defendant was bailable by entering a
pretrial release order at Defendant’s arraignment in 2011 but then imposed the most
restrictive type of bail available under Rule 5-401, a full cash or surety bond in the amount
of $250,000. See Rule 5-401(B)(3). The court also prohibited Defendant from possessing
firearms, alcohol, or illegal drugs; violating the law; leaving the county without the court’s
permission; entering liquor establishments; or making contact with any alleged victim,
codefendant, or witness in the case. Additionally, the district court required that Defendant

                                              17
maintain weekly contact with his attorney and notify his attorney of any changes to his
contact information.

{45} It is not clear from the record before this Court what, if any, information the district
court had when it first entered the pretrial release order at Defendant’s arraignment, and we
do not review that earlier decision. We address only the ruling that has been appealed to us,
the refusal to modify the $250,000 cash or surety bond that Defendant was unable to post.

{46} After the first bail review hearing, the district court found there were no facts
indicating that Defendant would likely “commit new crimes,” pose “a danger to anyone,”
or “be unlikely to appear if released.” The information Defendant presented at the second
review hearing was consistent with the information he presented in support of his first
motion. The State failed to present any new information at the second hearing or to
controvert Defendant’s evidence and continued to rely solely on the nature of the crime
charged. The district court, without a further written order, declined to change the conditions
of release, stating merely that Defendant “may present a danger of either flight or to other
members of the community,” in contrast to the court’s own finding following the first motion
hearing that Defendant did not pose a flight or safety risk (emphasis added).

{47} Contrary to the explicit requirements set forth in our rules, the district court failed
to explain in the record any rational connection between the facts in the record and the ruling
of the court, perhaps because there was no such connection. See Rule 5-401(G) (“Unless the
release order is amended and the person is thereupon released, the court shall state in the
record the reasons for continuing the amount of bail set.”); see also Gutierrez, 2006-NMCA-
090, ¶ 21 (cautioning judges to follow the directives of Rule 5-401 when “exercising their
discretion to set conditions of release”). We hold that the district court’s decision was
arbitrary and capricious and that the court abused its discretion by issuing a ruling at the
second motion hearing that was contrary to both the record and the district court’s previous
findings of fact, without articulating any principled reason or factual basis for the decision.

{48} All of the evidence Defendant presented supported a modification of Defendant’s
bail, and none of the evidence supported the district court’s decision to keep the $250,000
bond in place. The State failed to controvert Defendant’s evidence, offered no evidence of
its own, and declined to cross-examine Defendant’s witnesses. The district court denied
Defendant’s first motion despite the court’s express finding that there were no facts
indicating that Defendant would pose a flight or safety risk if released. The district court
denied Defendant’s second motion without entering any findings of fact to support its
decision, explaining only that “the nature of the allegations” and “the exposure that is
contained within the various counts of the indictment” led the court to conclude that
releasing Defendant “may present a danger of either flight or to other members of the
community.” This conclusion is inconsistent with the record and unsupported by substantial
evidence.

{49}   The district court’s decision was contrary to Rule 5-401, which sets forth the

                                              18
mandatory procedure for district courts to follow when making a pretrial release decision.
The district court was required to evaluate and balance each of the factors set forth in Rule
5-401(C) and to impose the least restrictive of the bail options and release conditions
necessary to reasonably assure that Defendant would not pose a flight or safety risk. The
record makes it clear that the court did not comply with the law.

{50} The findings of fact the district court entered following the first motion hearing
demonstrate that all of the information regarding Defendant’s personal history and
characteristics supported a reduction of Defendant’s bond. The district court found that
Defendant “would have an appropriate place to live with his father,” that Defendant’s
“former employers were seeking his return to employment,” and that Defendant’s “ties in
the community are longstanding and continuing with the familial support of his parents.”
The district court also found that Defendant had no pending criminal charges, no alcohol or
substance abuse problems, and no history of violence outside the allegations in this case.
And the district court found that Defendant had “been entirely compliant for the entirety of
his pretrial incarceration of over 2 years and 4 months” and had “appeared timely and
without incident at all scheduled hearings in this case.” Finally, the district court documented
the absence of any facts indicating that Defendant would predictably “commit new crimes,”
pose “a danger to anyone,” or “be unlikely to appear if released.” Although the district court
noted that it had drawn no conclusions “as to the weight of the evidence” against Defendant,
it denied Defendant’s first motion solely because of “the nature and seriousness of the
alleged offense.”

{51} It is clear that the district court based its pretrial release decision on only one of the
factors identified in Rule 5-401(C)—“the nature and circumstances of the offense
charged”—to the exclusion of all other factors. While a judge has discretion to evaluate and
balance each of the factors set forth in Rule 5-401(C), the judge “shall” consider and weigh
all of the factors, and no single factor automatically controls. See Rule 5-401(C).
Appropriately, the district court considered the charges and potential punishment in this case
in assessing flight risk and danger to the community posed by this Defendant, but the district
court failed to balance this information with the evidence presented in support of
Defendant’s motion. Because the district court failed to give proper consideration to all of
the factors set forth in Rule 5-401(C), its continued imposition of the $250,000 bond was
contrary to law.

{52} Neither the Constitution nor our rules of criminal procedure permit a judge to base
a pretrial release decision solely on the severity of the charged offense. Bail is not pretrial
punishment and is not to be set solely on the basis of an accusation of a serious crime. As
the United States Supreme Court has emphasized, “[t]o infer from the fact of indictment
alone a need for bail in an unusually high amount is an arbitrary act.” Stack v. Boyle, 342
U.S. at 6. The State has argued that $250,000 is a standard bond for an offense that can result
in life imprisonment. This argument runs contrary to both the letter and purpose of Rule 5-
401, which requires the judge to make an informed, individualized decision about each
defendant and does not permit the judge to put a price tag on a person’s pretrial liberty based

                                              19
solely on the charged offense. See ABA Standards, Standard 10-5.3(e), at 110 (“Financial
conditions should be the result of an individualized decision taking into account the special
circumstances of each defendant, the defendant’s ability to meet the financial conditions and
the defendant’s flight risk, and should never be set by reference to a predetermined schedule
of amounts fixed according to the nature of the charge.”). Empirical studies indicate that the
severity of the charged offense does not predict whether a defendant will flee or reoffend if
released pending trial. See Curtis E.A. Karnow, Setting Bail for Public Safety, 13 Berkeley
J. Crim. L. 1, 14-16 (2008) (reviewing studies indicating that “evidence does not support the
proposition that the severity of the crime has any relationship either to the tendency to flee
or to the likelihood of re-offending”); 4 Wayne LaFave et al., Criminal Procedure, § 12.1(b),
at 12 (3d ed. 2007) (citing studies and stating that the “likelihood of a forfeiture does not
appear to depend upon the seriousness of the crime”). Setting money bail based on the
severity of the crime leads to either release or detention, determined by a defendant’s wealth
alone instead of being based on the factors relevant to a particular defendant’s risk of
nonappearance or reoffense in a particular case. See Hairston v. United States, 343 F.2d 313,
316-17 (D.C. Circ. 1965) (Bazelon, C.J., dissenting) (“Setting high bail to deny release
discriminate(s) between the dangerous rich and the dangerous poor and masks the difficult
problems of predicting future behavior which is, in itself, fraught with danger of excesses
and injustice.” (alteration in original) (internal quotation marks and citation omitted)).
Because of this, judges “should exercise care not to give inordinate weight to the nature of
the present charge in evaluating factors for the pretrial release decision.” ABA Standards,
Standard 10-1.7, at 50.

{53} Neither the New Mexico Constitution nor our rules of criminal procedure permit a
judge to set high bail for the purpose of preventing a defendant’s pretrial release. See N.M.
Const. art. II, § 13; Rule 5-401; see also Bandy, 81 S. Ct. at 198 (“It would be
unconstitutional to fix excessive bail to assure that a defendant will not gain his freedom.”).
Intentionally setting bail so high as to be unattainable is simply a less honest method of
unlawfully denying bail altogether. If a defendant should be detained pending trial under the
New Mexico Constitution, then that defendant should not be permitted any bail at all.
Otherwise the defendant is entitled to release on bail, and excessive bail cannot be required.
N.M. Const. art. II, § 13; cf. 18 U.S.C. § 3142(c)(2) (providing that a federal “judicial officer
may not impose a financial condition that results in the pretrial detention of the person”),
held unconstitutional on other grounds by, e.g., Karper, 847 F. Supp. 2d 350.

{54} We understand that this case may not be an isolated instance and that other judges
may be imposing bonds based solely on the nature of the charged offense without regard to
individual determinations of flight risk or continued danger to the community. We also
recognize that some members of the public may have the mistaken impression that money
bonds should be imposed based solely on the nature of the charged crime or that the courts
should deny bond altogether to one accused of a serious crime. We are not oblivious to the
pressures on our judges who face election difficulties, media attacks, and other adverse
consequences if they faithfully honor the rule of law when it dictates an action that is not
politically popular, particularly when there is no way to absolutely guarantee that any

                                               20
defendant released on any pretrial conditions will not commit another offense. The
inescapable reality is that no judge can predict the future with certainty or guarantee that a
person will appear in court or refrain from committing future crimes. In every case, a
defendant may commit an offense while out on bond, just as any person who has never
committed a crime may commit one. As Justices Jackson and Frankfurter explained in
reversing a high bond set by a federal district court, “Admission to bail always involves a
risk that the accused will take flight. That is a calculated risk which the law takes as the price
of our system of justice.” Stack v. Boyle, 342 U.S. at 8 (Jackson, J., joined by Frankfurter,
J., specially concurring).

III.    CONCLUSION

{55} For the reasons stated in this opinion, we reaffirm our prior order holding that the
district court unlawfully failed to release Defendant pending trial on the least restrictive of
the bail options and release conditions necessary to reasonably assure Defendant’s
appearance and the safety of the community, our reversal of the district court’s continued
imposition of a $250,000 bond, and our order that Defendant be released on nonmonetary
conditions pending trial.

{56}    IT IS SO ORDERED.

                                                ____________________________________
                                                CHARLES W. DANIELS, Justice

WE CONCUR:

____________________________________
BARBARA J. VIGIL, Chief Justice

____________________________________
RICHARD C. BOSSON, Justice

____________________________________
EDWARD L. CHÁVEZ, Justice




                                               21
