Jan. 24—Excerpts from an interview with state Supreme Court Chief Justice C. Shannon Bacon.
Question: What do make of the public's concern about crime and the perception the system is somehow soft on crime?
Answer: Everybody's perception is guided by what they see and hear. I think there has been very imbalanced discussions of the criminal justice system over the past four years and a real lack of understanding of how it actually works.
Question: Lawmakers have introduced a flurry of bills aimed at addressing crime. Does it concern you the judiciary could be tasked with implementing measures thought up by people who don't really understand how the system works?
Answer: There is always that concern. We worry about unfunded mandates where the Legislature maybe ... doesn't understand the fiscal ramifications [of proposed policy decisions] on the judiciary. So then our budget just gets stretched thinner and thinner. I'm hopeful because I feel like we're having a better dialogue with the Legislature right now and being included in different kinds of conversations ... that will I hope avoid kind of that miscommunication and that lack of understanding.
Question: In some ways the courts are being asked to solve the problem of crime, but many, including the newly elected attorney general, say adverse childhood experiences are the biggest driver of crime. Is it within the capability of the judiciary to reduce crime? And how?
Answer: It's not. We are the ones who enforce the law. In order to tackle crime globally in a state like New Mexico, you have to start with behavioral health. That, to me, is the key. And that goes to that childhood trauma problem. It's childhood trauma. It's poverty and lack of education, lack of opportunity, coupled with mental health and behavioral health problems that just aren't being adequately addressed in New Mexico.
Question: Does that put you in a difficult position?
Answer: It can. Today I talked about our Mental Health Commission. We're looking for solutions for the mental health challenges and behavioral health challenges in New Mexico. Because right now, most behavioral health services are provided through the judiciary and corrections, and that's not an adequate way to address those problems. We want to address those problems before somebody comes into the criminal justice system. It's much harder to address once they're in the system. But once they are ... we spend a lot of effort on treatment courts, and they're very, very successful. And now we are looking at competency in a new way and trying to reform that system. So those are things that the judiciary can control, but it's only one small piece of the puzzle.
Question: You highlighted bail reform as something that furthers the foundational ideas of the judicial system, but it's been targeted for additional reform by people who say it allows dangerous criminals to go free. Does it get a bad rap from the public and from legislators?
Answer: I wouldn't say it's a bad rap. I think it's a misunderstood process. And that was my goal today: to remind people all of the dangerous people in New Mexico were out on bond pending trial before bail reform, and it wasn't about dangerousness. Under our system, they were entitled to bail. So somebody's grandmother would take out a payday loan on their car so that their grandkid could be free pending trial. And they were just out walking around. They weren't subjected to any system that verified they were not doing bad things or harassing victims or weren't fleeing the state. That wasn't part of the equation.
And now with bail reform, judges can assess that dangerousness. I wanted to make sure and highlight that in Albuquerque because Albuquerque is the biggest story. Understandably 3,000 people have been detained pending trial because a judge said, "Yes, you are dangerous." And the state presented evidence that they were dangerous because that's the only way the judge can make that determination. The state has the burden to come forward with evidence that the person is a danger to the public. ... If the state doesn't do that, a judge's hands are then tied. They don't get to decide dangerousness without evidence.
Question: Are you concerned the bond reform issue could put the judiciary at odds with the executive branch?
Answer: It's always a concern. It could put us at odds with the Legislature. It could put us at odds with the executive, and that's the nature of three branches of government.
Question: What would you say to criticism that the COVID-19 emergency is being used to justify bypassing rule-making committees, making the rule-making process more susceptible to political whims?
Answer: I think that criticism is unfounded. All of the programs that I discussed today had all of the partners at the table. ... They had district attorneys, public defenders, judges, at times, law enforcement. So we're not excluding anybody from from those conversations at all.
Question: Is there valid criticism of the Arnold tool [a pretrial risk assessment tool] and how it's being used by judges? Does it tie a judge's hands?
Answer: There is not valid criticism. The pretrial risk assessment is just one tool, and it does not tie a judge's hands at all. They are not required to follow it. It is just one tool in a bucket of information that is presented to the judge.