August 27, 2015

Proposal would allow judges to deny bail in some instances

An official from New Mexico’s Administrative Office of the Courts and a state senator announced on Monday a proposed amendment to the New Mexico Constitution that would change the bail process in New Mexico.


Sen. Peter Wirth, D-Santa Fe, announcing his intention to introduce a constitutional amendment that would reform how bail is set in criminal proceedings. Photo Credit: Andy Lyman

The proposed change, announced at a press conference, would allow judges more discretion to deny bail in criminal pretrial proceedings for those who are considered flight risks or are considered too dangerous to the public.

At the press conference Administrative Office of the Courts director Artie Pepin told reporters that the New Mexico Supreme Court has endorsed the idea of a constitutional amendment to change the way judges can issue or deny bail in initial court proceedings. He said the committee has not come up with any specific language, but that some of the other “not very useful” language will probably be taken out.

New Mexico State Sen. Peter Wirth, D-Santa Fe, said that he plans to introduce a Senate Joint Resolution that, if approved by both the Senate and House, would let New Mexico voters decide on the amendment. Wirth called the current system for posting bail, “broken” and “fundamentally unfair and not working.”

He said there many people who can afford high bail amounts, but there are also many people that stay in jail because they cannot afford to pay their bail.

Administrative Office of the Courts director Artie Pepin. Photo Credit: Andy Lyman

Administrative Office of the Courts director Artie Pepin. Photo Credit: Andy Lyman

“The right to bail is a constitutional right in the [New Mexico] Bill of Rights,” Wirth said.

Wirth is also Chairman of the Senate Judiciary Committee.

The announcement comes after the Ad Hoc Pretrial Release Committee, a group of lawyers, judges and bail industry representatives, recommended a constitutional amendment to reform bail procedures in New Mexico.

The New Mexico constitution currently only allows denying bail in certain circumstances.   From the state constitution:

Bail may be denied by the district court for a period of sixty days after the incarceration of the defendant by an order entered within seven days after the incarceration, in the following instances:

A. the defendant is accused of a felony and has previously been convicted of two or more felonies, within the state, which felonies did not arise from the same transaction or a common transaction with the case at bar;

B. the defendant is accused of a felony involving the use of a deadly weapon and has a prior felony conviction, within the state. The period for incarceration without bail may be extended by any period of time by which trial is delayed by a motion for a continuance made by or on behalf of the defendant. An appeal from an order denying bail shall be given preference over all other matters.

A letter from Chairman Leo Romero, on behalf of the committee, to the New Mexico Supreme Court outlines why the committee decided not draft specific language.

From the letter:

The committee contemplated drafting specific language for the constitutional amendment but ultimately decided to leave that task to the Supreme Court, the Administrative Office of the Courts, and the Legislature. The committee anticipates that if such an amendment is approved by the voters, the Supreme Court, in coordination with its rules committees, will draft procedural rules to ensure that defendants are afforded procedural due process before the issuance of any pretrial detention order.

The ad hoc committee was formed earlier this year, by the high court, to look into possible changes to pretrial release procedures.

In a press release on Thursday, Romero said the current practice of judges around the state may be unconstitutional and an amendment may help clarify what judges can do to protect the community.

“Currently, judges have been setting high money bonds to detain these individuals although neither the current New Mexico Constitution nor the rules of procedure permit a judge to set a high money bond for the purpose of preventing a defendant’s pretrial release,” Romero said.

The upcoming legislative session is a 30 day session. In such short sessions, only budget matters and those deemed germane can be discussed. However, constitutional amendments are not included in this and do not need the approval of the governor to be discussed.

Wirth said that since the proposed legislation will be a Joint Resolution, Gov. Susana Martinez does not have to approve it before it ends up on a ballot.

Wirth said the proposed language for the resolution will head to an interim legislative committee before it’s officially filed for the 2016 legislative session.