August 28, 2015

Here’s the initial wording on a proposal to give judges discretion on denying bail

Earlier this week, the New Mexico Administrative Office of the Courts and New Mexico Supreme Court announced their support for a constitutional amendment that would give judges more discretion to deny bail for certain defendants who are accused of dangerous crimes.


Supporters of the proposed amendment released a draft copy, which is available below.

Currently, the New Mexico constitution allows judges to deny bail for up to 60 days, in some cases. The amendment, which would have to be approved by the New Mexico Legislature before going to the voters, would allow judges to completely deny bail if a defendant is considered to be unsafe to the general public or is a flight risk. It would also ensure that a defendant would not be jailed because of a lack of money.

The state constitution currently reads:

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.

The new proposal reads:

Bail may be denied by the district court pending trial if, after a hearing, the court finds by clear and convincing evidence that no condition or combination of conditions of release will reasonably ensure the person’s appearance in court or protect the safety of the community or any other person.

It goes on to say:

No person eligible for pretrial release under this section shall be detained solely because of financial inability to post a money or property bond.

During the press conference on Thursday, Artie Pepin, director of the  Administrative Office of the Courts told reporters that alternative conditions of release can include a monitoring device or a requirement to regularly check in with the court.

Sen. Peter Wirth, D-Santa Fe, said he would introduce a joint resolution which does not need to be approved by the governor.

A draft proposal has been written and Wirth said it will probably head to an interim committee for recommendations.

Read the proposed amendment below.