Some district attorneys are blaming judges for releasing defendants and want to change court rules to detain suspects based solely on the seriousness of the charge. Is this the right idea?
Imagine you are accused of a serious crime you didn’t commit. Maybe someone wanted to hurt you by abusing the system; maybe it’s a case of mistaken identity; maybe it’s all just a big misunderstanding. You get arrested and put in jail. Because of the nature of the charges, you’re not allowed to be released until you see a judge, which could take two days. You’re missing work on top of other issues, like child care, earning money for bills, etc.
You finally see a judge. But, because the prosecutor believes you committed a serious crime, he or she files a motion to keep you in jail. Now the judge must hold you in jail for up to another week, until you see a District Court judge. Even though you’re innocent, there is literally nothing you can do. You might be fired for missing that much work, and you don’t know how you’re going to be able to pay your rent or mortgage.
Then you get to District Court. You get an attorney appointed to you who wasn’t able to meet you until that day, because of the fast timelines and because they already have more than 100 other cases. The prosecutor argues that you should be kept in jail until trial. The only person between you and jail for months is the District Court judge. It’s her job to make sure the prosecutor presented enough evidence that you’re a danger to the community to justify holding you in jail for the next several months, if not years.
Now imagine that the prosecutor believes it should be your job to prove that you aren’t dangerous; that even though you are presumed innocent of this crime, and even though you haven’t had a chance to get witnesses together to prove your actual innocence, you should be denied your freedom simply because you are accused of a serious crime. Why does the prosecutor want that? Because they think it’s too hard. Because other people have been released and then been accused of new crimes. Because the prosecutor feels he doesn’t have time to get the evidence together. Because of a lot of things — that have absolutely nothing to do with you.
Is that fair? Should you have the nearly impossible task of proving your innocence in order to stay out of jail? Do you want the judge to make it easier on the prosecutor to keep you incarcerated for the next year? Of course not. But that’s what district attorneys around the state want.
Do you want a judge who is just going to look at the charge and keep you in custody? A judge who doesn’t care that you’ve never been in trouble before but could punish you before you’ve been convicted, because you “might” be a danger to the community? Of course not. But that’s what district attorneys around the state want.
As a former prosecutor, I know very well the vast power of the state. And the state is now empowered to keep people in jail for over a week just because they decide to. As a former judge, I also know how seriously judges take their duty to do the right thing and to protect the rights of everyone in front of them, including those charged with serious crimes. Don’t let overzealous prosecutors blame judges for protecting everyone — for protecting you. Let judges do their jobs.
Jonathan L. Ibarra is a former prosecutor and District Court judge in Albuquerque. He now works for the Law Offices of the Public Defender and is a member of the board of directors of the New Mexico Criminal Defense Lawyers Association. He has served on five different New Mexico Supreme Court committees, including the Pretrial Release Committee.