The Senate Health and Public Affairs Committee tabled a bill Wednesday that sought to keep defendants charged with certain violent crimes, including first-degree murder, behind bars without bond while they await trial. The committee voted 4-3 to table Senate Bill 123 amid concerns it is unconstitutional. The action likely means the measure won’t move forward during the session. A fiscal impact report on the bill stated “litigation regarding its constitutionality should be expected” if it were enacted as proposed. The report also estimated the measure could cost the state up to $15.3 million a year.
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.
A new study looking at the impact of pretrial detention in New Mexico reinforces a previous legislative committee’s study and found that only a small percentage of defendants are charged with a second crime while awaiting trial.
The study, conducted by researchers from the Santa Fe Institute and the University of New Mexico’s Institute for Social Research, found that of the more than 15,000 defendants charged with a felony between July 1, 2017 and June 30, 2021, only a small fraction were charged with a second felony.
“It is worth noting that very few of these defendants were charged with new high-level felonies,” the researchers wrote. “A total of 15 defendants in our dataset, or one out of every thousand, were charged with a new first-degree felony. A total of 141 were charged with a new second-degree felony, 70 of which were violent—about one-half of one percent.”
The latest study comes just months after the New Mexico Legislative Finance Committee released similar findings. The legislative study was released just ahead of the 2022 legislative session where Gov. Michelle Lujan Grisham, Albuquerque Mayor Tim Keller and Bernalillo County District Attorney Raúl Torrez, who is also currently the Democratic nominee for attorney general, all pushed for laws to increase penalties and make it easier to detain defendants before trial.
The end of the session resulted in some concessions and the governor’s office seemed to shift away from its focus on a “rebuttable presumption” and called the final outcome a win. In terms of the legal system, the idea behind rebuttable presumption is that a judge assumes certain defendants are a danger to the community unless proven otherwise by the defendant’s attorney.
The most recent study on pretrial detention, like the previous study, says rebuttable presumptions flip the burden of proof to the defense instead of prosecutors, raising “profound constitutional questions.”
“In essence, they predict that a defendant will commit a serious crime if they are released between arrest and trial,” the researchers wrote.
