EDITORIAL: NM Supreme Court ruling does little to help crime fighting

Aug. 21—At a time when confidence in our criminal justice system nationally is cratering, it's disappointing that our own Supreme Court has decided to continue to restrict access to pretrial records law enforcement says could help solve crimes.

Another concern is how the justices did it. The New Mexico Supreme Court issued a surprise order last week on the volatile issue of defendant GPS data without soliciting written arguments or public input from police, prosecutors, public defenders or the public.

The order issued Wednesday shut down a lower court ruling that found GPS records were public, dashing the hopes of law enforcement that wanted easier access to those records for criminal investigations.

Law enforcement says the location data of defendants suspected of committing new offenses while on release could help solve some of those crimes.

The state Supreme Court decided to settle the issue via an order as opposed to pursuing a rule that would normally have allowed public input.

"This is a standalone order issued by the (Supreme) Court, similar to the many orders issued by the court during the pandemic to establish protocols for the safe operation of courts," said court spokesman Barry Massey.

The difference here is there is no public health emergency regarding defendant GPS data, except of course for the urgency of fighting crime.

The state Supreme Court stated in its order, as a general rule, pretrial services records are confidential and shouldn't be made part of any public record unless admitted as evidence in a court proceeding.

The Supreme Court in its order cited a provision of House Bill 68, an omnibus crime bill lawmakers of both major political parties overwhelmingly approved in February.

The provision allowed law enforcement to obtain GPS data up to a year old without a warrant only if they have reasonable suspicion to believe the data will be probative in an ongoing and pending criminal investigation. District attorneys around the state opposed that provision and complained they had no input into the drafting of that language.

In addition to that provision, the state Supreme Court order provided an additional path for law enforcement to obtain the records without a warrant. Its order states GPS records may be disclosed to law enforcement when there is an "immediate, credible threat of physical harm to members of the public." Records released can only contain defendant location data for the prior seven days.

The Supreme Court order overrides an Aug. 1 district court ruling that such records were public under the state Inspection of Records Act. The judge in that case had found that court administrators in Bernalillo County violated IPRA when they withheld GPS data from prosecutors on two defendants.

Bernalillo County District Attorney Raúl Torrez filed a lawsuit in December, contending the data, as a matter of public safety, should be available to the public, including law enforcement. Sandoval County District Judge James Noel's ruling was a victory for both transparency and law enforcement.

Unlike many decisions, the Supreme Court's order wasn't based on a specific case pending before the court. The high court didn't specify what prompted its order.

Why does this matter?

The Administrative Office of the Courts recently presented the latest pretrial release data, covering 3,500 pretrial release cases in four judicial districts around the state — covering Doña Ana, Grant, Luna, Hidalgo, McKinley, San Juan, Cibola, Sandoval and Valencia counties, but not Bernalillo County.

Supporters of the current pretrial release program point out that the vast majority of those in the program do not reoffend while awaiting trial. And they speak to the unfairness of holding defendants in jail for up to year prior to trial.

However, the Greater Albuquerque Chamber of Commerce, a critic of the current release program, pointed out that according to the recently released pretrial release data, nearly one of every four released defendants did not show up for a court hearing. On average, 13 released defendants per week were charged with committing a new crime while out of jail between October 2021 and June 2022.

The state Supreme Court said its order was seeking to implement a uniform policy on pretrial services supervision records through established procedures. That's understandable. The court's role is to assure the equal application of the law statewide, and these records are part of a court program.

Like the New Mexico Foundation for Open Government, we believe providing the public with more information results in better government. Moreover, defendants wearing court-ordered ankle monitors agree to constant monitoring in return for staying out of jail pending trial.

That said, there are legitimate concerns about possible stalking and harassment of defendants if all GPS records are open to the public. But it's hard to understand how limiting access of such records to law enforcement helps the public.

According to a recent Gallup poll, confidence in American institutions is at record lows — and such court decisions don't help.

It's disappointing the state Supreme Court didn't feel the need to consult police, prosecutors, public defenders or the public before issuing its mandate.

The Legislature should revisit the law regarding accessing GPS records in the upcoming legislative session, and make sure prosecutors and defense attorneys are included in the debate.

This editorial first appeared in the Albuquerque Journal. It was written by members of the editorial board and is unsigned as it represents the opinion of the newspaper rather than the writers.