By Phaedra Haywood, The Santa Fe New Mexican
A bill backed by Gov. Michelle Lujan Grisham that calls for people accused of certain violent crimes to remain jailed without bond until their trial could cost the state up to $15.3 million a year, a legislative analysis says.
The fiscal impact report by the Legislative Finance Committee also cites concerns about whether Senate Bill 123 might violate the New Mexico Constitution.
“If SB123 is enacted as proposed, litigation regarding its constitutionality should be expected,” the report says.
The measure, sponsored by Sen. Linda Lopez and Rep. Meredith Dixon, both Albuquerque Democrats, establishes a presumption that no conditions of release would protect the community from defendants charged with crimes such as first-degree murder, first-degree child abuse, sexual exploitation of a child and child trafficking.
While New Mexico’s current pretrial detention system requires prosecutors to provide evidence proving to a state district judge a defendant poses too great a danger to be released on any conditions, the bill states “it shall be presumed” prosecutors have satisfied their burden of proof through probable cause to charge the person with one of several high-level felony counts.
The defendant would have an opportunity to rebut the presumption.
SB 123 is scheduled for its first legislative hearing Wednesday before the Senate Health and Public Affairs Committee. Advocates have said the goal of the measure is to prevent defendants from committing additional violent crimes while they await their trials.
The fiscal report estimates the increased costs of jailing defendants until their trial and providing public defenders to represent them at a detention hearing would be about $24 million per year, and the bill’s potential cost savings due to prevented crimes would be about $8.7 million.
The estimates are based on an assumption the bill would result in about 1,882 people detained each year and about 283 crimes prevented each year, including one homicide, the report says.
“Pretrial detention policy seeks to balance the public’s interest by not unnecessarily detaining individuals who pose no risk to the community and preventing the release of individuals who will go on to commit a serious crime during the pretrial period,” legislative analysts wrote in the report.
“There is an asymmetry in how these two priorities are balanced,” the analysts added. “The defendants whose lives are upturned due to unnecessary pretrial detention remain invisible and are rarely reported. In contrast, when a defendant is released and commits a serious crime, their name and criminal history are widely reported. Historically, the fiscal impacts of an unnecessary detention have been under accounted, mirroring public perception. This analysis is unable to estimate the impacts given data constraints, but it acknowledges these are significant.”
The report says, “Tangible and intangible costs borne by victims of these crimes, and communities experiencing high crime rates, and the value of life lost are not included in these figures and could also be significant.”
Dixon said in a statement, “Nothing is more important than the safety of our families and our communities. Preventing the most violent criminals from being prematurely released to our streets is one piece of the solution, but it’s not a silver bullet. That’s why we’re working on a multi-faceted crime package.”
Lopez did not respond to requests for comment.
Nora Meyers Sackett, a spokeswoman for Lujan Grisham, wrote in an email Monday, “The governor has been clear about prioritizing keeping violent repeat offenders off New Mexico streets by establishing a rebuttable presumption. The state is also clear that defendants are innocent until proven guilty and does not seek to change that process.”
SB 123 is one of several measures proposing changes to rules enacted by the state Supreme Court after voters approved a constitutional amendment in 2016 eliminating a money bond as a requirement for release from jail in most criminal cases in favor of a system that calls for state prosecutors to prove by “clear and convincing” evidence a defendant should be detained until trial to keep the public safe.
Proponents of so-called “rebuttable presumptions” say making it easier to hold more defendants in jail before their trial will protect the public’s safety.
Opponents say such laws are unconstitutional and shift the burden of proof from the state to the defendant.
The fiscal impact report for SB 123 notes “pre-trial defendants are small contributors to New Mexico’s overall violent crime rate.” It cites a 2021 study that showed 95 percent of Bernalillo County defendants released before trial “did not pick up new violent charges while on pretrial release.”
The report also cites a 2018 evaluation by the Legislative Finance Committee that found longer periods of incarceration are tied to higher rates of recidivism, which has “long-term fiscal implications for county-run detention facilities and for the economy as a whole.”
