January 25, 2022

Debate heats up over pretrial detention

Jennifer Burrill, a public defender in Santa Fe, said she represented a client in recent years who was jailed for 11 months on a charge of attempted armed robbery until his trial — when jurors acquitted him.

“He’s out 11 months of his life,” she said in an interview Monday. “He didn’t have contact with his child for 11 months. He was in jail during COVID for 11 months.”

Burrill, who is president-elect of the New Mexico Criminal Defense Lawyers Association, is a critic of House Bill 5, lauded by the governor and some lawmakers as an effort to rein in rising rates of violent crime.

The measure would make a major change to the state’s pretrial detention system — which requires prosecutors to provide evidence to a judge showing a defendant accused of a violent crime should be jailed without the possibility of bail until trial because of the danger of further violence. Instead, the burden would be placed on the defendant to prove why the individual poses no such risk to the community and should be released.

Supporters say the legislation would keep more potentially dangerous people off the streets, but Burrill and other critics say it would erode residents’ rights and lead to overcrowding in jails with little evidence of increased public safety. The emotional debate over HB5 — which could become among the most contentious in the legislative session — comes after recent reports on the pretrial detention system have found little evidence of widespread violence by defendants who are released before their trials.

“We are stripping somebody of their liberty, and we have to think how we would feel if that were us,” Burrill said. “If you were brought into court and asked, ‘Prove you didn’t do that,’ how would you do that?”

Angel Alire, whose 22-year-old son Devon Heyborne was killed in April in Albuquerque by a teen who had been released before his trial in another case, presented another argument: HB5 is necessary to ensure more innocent people do not die.

She told members of the House Government, Elections & Indian Affairs Committee the pretrial release process is “not working because my son is dead.”

“Can anyone look me in the eye and say saving one life isn’t worth trying something new?” Heyborne added.

One of the sponsors of HB5, Rep. Marian Matthews, D-Albuquerque, said it may be “a very controversial bill that is offered in response to what many consider unacceptable levels of violence in Albuquerque and increasing levels of violence in other parts of New Mexico.”

Lawmakers and the governor, wrangling with both a rising crime rate and a public perception they are not doing enough to protect residents from violent criminals, have made battling crime a top priority. Gov. Michelle Lujan Grisham, a Democrat, has touted in particular the bail reform bill. She said in her State of the State address last week it would help place a wedge in the revolving door of violent crime. 

Proponents of the bill often point to the case of Darian Bashir, who recently was found guilty of fatally shooting UNM baseball player Jackson Weller in 2019. Bashir had a history of criminal violence, and at the time of Weller’s death, he was on a supervisory release plan while awaiting trial on a charge of shooting an assault weapon from a car at another vehicle.

Public defenders who testified in the legislative hearing Monday said it’s easy to use fear factors to gain approval for the measure.

“It’s easy to focus on scary facts … this one person who got out and did terrible things,” said Kim Chavez Cook, an appellate defender at the New Mexico Law Offices of the Public Defender. “There are also innocent people being held in jails, and there are terrible things happening to them, too.”

A report by the Legislative Finance Committee points to data from the Bernalillo County judicial system from 2017-21 that shows 95 percent of defendants on pretrial release “did not pick up violent charges.” The report mirrored the findings in a recent study by the University of New Mexico Institute for Social Research.

The Legislative Finance Committee’s report, released last week, also found that as crime rates rose over the past few years in the state, prosecutors and police officers saw fewer rates of arrest and conviction.

Second Judicial District Attorney Raúl Torrez, in a separate legislative hearing Monday, blasted the report.

“I take issue in the way in which the numbers were collected and presented to policymakers about the performance of my office,” he said before the Senate Judiciary Committee.

The report did not take into account several factors, such as the number of cases his agency referred to federal authorities and a reduction in the use of grand juries in his district, he said.

The numbers used in the report are “wildly, wildly off the mark,” Torrez said.