Moore, Cristopher; Elise Ferguson and Paul Guerin

In New Mexico and many other jurisdictions, judges may detain defendants if the prosecutor proves, through clear and convincing evidence, that releasing them would pose a danger to the public. However, some policymakers argue that certain classes of defendants should have a “rebuttable presumption” of dangerousness, shifting the burden of proof to the defense. Using data on over 15,000 felony defendants who were released pretrial in a four-year period in New Mexico, we measure how many of them would have been detained by various presumption criteria, and what fraction of these defendants in fact posed a danger in the sense that they were charged with a new crime pretrial. We consider presumptions based on the current charge, past convictions, past failures to appear, past violations of conditions of release, and combinations of these drawn from recent legislative proposals. We find that for all these criteria, at most 8% of the defendants they identify are charged pretrial with a new violent crime (felony or misdemeanor) and at most 5% are charged with a new violent felony. The false positive rate, i.e., the fraction of defendants these policies would detain who are not charged with any new crime pretrial, ranges from 71% to 90%. The broadest legislative proposals, such as detaining all defendants charged with a violent felony, do little better than the base rate among all defendants released under the current system. We also consider detention recommendations based on risk scores from the Arnold Public Safety Assessment (PSA). Among released defendants with the highest risk score and the “violence flag,” 7% are charged with a new violent felony and 71% are false positives. We conclude that these criteria for rebuttable presumptions do not accurately target dangerous defendants: they cast wide nets and recommend detention for many pretrial defendants who do not pose a danger to the public.