By Robert Nott, Santa Fe New Mexican
A “tougher on crime” bill championed by the governor that supporters say would address the perception of violent criminals moving through a judicial revolving door went through something of a revolving door itself Monday.
Members of the Senate Health and Public Affairs Committed voted 5-4 to table Senate Bill 122, which advocates say would give prosecutors and judges a stronger tool to keep suspects charged with violent crimes behind bars while they await trial.
Similar bills have been tabled in Senate committees in the two past legislative sessions, and Monday’s vote created an outcry from one of its sponsors, Sen. Craig Brandt, R-Rio Rancho.
After the hearing, Brandt said in an interview it’s “ironic” many Senate Democrats voted against a measure Gov. Michelle Lujan Grisham, a Democrat, supports.
“Seems like the governor wants to do more about crime than senators in her party,” he said after five Democrats on the committee moved to table the bill. One Democrat, Sen. Martin Hickey, of Albuquerque, voted with the three Republicans on the committee against the tabling motion.
Lawmakers and the governor, under fire as New Mexico has battled a crime wave for the past several years, have made the issue a top priority. In her past two State of the State addresses, Lujan Grisham has called for tougher pretrial detention laws.
After the vote, she issued a scathing statement on the committee vote.
“I am dismayed that our Legislature has once again refused to undertake an honest, robust debate on the state of our pretrial release system,” she said. “Crime is out of control and something needs to change. We have invested hundreds of millions of dollars in behavioral health services, education, economic opportunity – critical components that ensure every New Mexican gets a fair shake. However, I will not stand by as repeat violent offenders walk in and out of our courthouses without consequence.
“A rebuttable presumption is not an extreme policy, and ours is modeled after federal law that has been in place for decades,” she added.
Several senators who spoke against the bill said it could violate state constitutional provisions that require a prosecutor to prove “by clear and convincing evidence that no release conditions will reasonably protect the safety of any other person or the community.”
That bill’s fiscal impact report says if it became law “litigation regarding its constitutionality should be expected.”
“I can’t see it surviving any kind of constitutional state scrutiny,” Sen. Antoinette Sedillo Lopez, D-Albuquerque, told Brandt during the hearing.
“It’s disappointing,” Brandt said of the tabling. “We need to do something. Crime is out of control.”
But Ramona Martinez of the New Mexico Criminal Defense Lawyers Association said many people don’t realize the state’s current pretrial detention system allows judges and district attorneys to keep suspects in jail if warranted.
She said of 14 homicide cases she is handling, every suspect is being held in pretrial detention.
After the hearing she said some suspects are “potentially actually innocent” and others might have a legitimate “self-defense” argument.
Under SB 122, pretrial detention for certain types of repeat violent offenders can be imposed if a prosecutor files a pretrial detention motion and shows probable cause the defendant committed the crime with which he or she is charged. The prosecutor must also prove a defendant is too dangerous to release.
Proponents of the bill often point to the case of Darian Bashir, who was found guilty of fatally shooting University of New Mexico baseball player Jackson Weller in 2019. Bashir had a history of criminal violence, and at the time of Weller’s death, was on a supervisory release plan while awaiting trial on a charge of shooting an assault weapon from a car at another vehicle.
Whether holding suspects, even those charged with violent crimes, makes a difference continues to be debated.
A 2022 Legislative Finance Committee used data from the Bernalillo County judicial system from 2017-21 to show 95 percent of defendants freed on pretrial release “did not pick up violent charges.” The report mirrored the findings in a similar study by the University of New Mexico Institute for Social Research in December 2021.