The American Civil Liberties Union (ACLU) of New México, along with cooperating attorneys at Keker, Van Nest & Peters LLP and López, Dietzel, Perkins & Wallace, P.C., last week filed a Motion for Expedited Review of Conditions of Release in the New México Court of Appeals on behalf of Molynda Brewer, an indigent woman who has been jailed for nearly three months because she cannot afford the court-imposed fees for her pretrial release. Brewer, who was arrested in Silver City on October 30, 2018, is homeless and therefore cannot meet the demands of the District Court that she remain under house arrest or that she pay for GPS monitoring.
“Ms. Brewer sits in jail—and has sat there for nearly three months—for one reason: the District Court requires her to pay for housing and GPS monitoring that she cannot afford,” said ACLU of New México Legal Director Leon Howard. “This constitutes a de facto unaffordable money bond, which the New México Supreme Court, the state Legislature and the overwhelming majority of the people of New México have already found unconstitutional.”
In 2016, New México’s voters and Legislature voted to amend the New México Constitution to ensure that bail could not turn on a defendant’s financial means. The State Constitution now expressly states that a person who does not present a danger to the community or who is not a flight risk “shall not be detained solely because of financial inability to post a money or property bond.” However, costly conditions of release continue to result in prolonged incarceration for those who cannot afford to pay. This practice operates as a back-door bail system that keeps poor people in jail pending trial simply because they are poor.
“The law dictates that a person is innocent until proven guilty,” said Howard. “Requiring anyone to pay excessive fees they cannot afford for pretrial release violates the New México Constitution’s guarantee of affordable bail and runs afoul of federal and state guarantees of equal protection and due process.”
The motion calls for Brewer’s immediate release and asks the Court of Appeals to instruct the District Court to eliminate or modify any unaffordable conditions of release.
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