Ledes from the Land of Enchantment

In a quick sprint, NM lawmakers endorse toughening release conditions for some defendants

After years of intense debate around how New Mexico courts should handle people accused but not convicted of a felony crime, the state’s Legislature backed a proposal to make it harder for people to get out of jail a second time if they are accused of another felony-level crime while out of jail as the first one is still pending.

While multiple attempts have come and gone to reform or reverse a 2016 mandate from New Mexico voters on no cash bonds, this most recent attempt took just under two weeks to fly through the legislature with broad bipartisan support.

While all previous bills tried to “mess with” the judge handling the second case, this one holds the defendant in jail until the judge in the first case speaks with them about why they allegedly broke the law again, said Sen. Daniel Ivey-Soto (D-Albuquerque), the bill’s sponsor.

“There’s nothing in this bill that tells the judges what to do,” Ivey-Soto said. “There’s nothing in this bill that says what the outcome will be. All this bill says is, hold them until they have a conversation with the judge from the previous case as to why they’re out committing crimes.” 

A ‘deceptively simple’ bill

Whenever someone in New Mexico is arrested or charged with a crime, the judge assigned to their case must hold a pretrial detention hearing where the court determines whether that person should be held in jail until trial. The judge makes the decision based on whether the accused person is a danger to themselves or others, and whether they’re likely to flee the state while the case is pending.

For years, lawmakers have weighed fundamental changes to these pretrial detention hearings, with many policymakers decrying a so-called “revolving door” of people accused of crimes getting out and doing more unlawful behavior.

Gov. Michelle Lujan Grisham has pushed for the burden of proof in these hearings to be shifted from state prosecutors to the defendants themselves, in a proposal called “rebuttable presumptions.” But lawmakers have repeatedly rejected it, having listened to critics who say it would be unconstitutional.

Now, a related but different proposal called Senate Bill 271 would change the way courts handle cases where someone is accused of a felony, is released from jail and goes on to commit a second felony.

Ivey-Soto said SB 271, titled “Repeat Felony Offender No Hold Bond,” would require the judge in the first case to consider changing or revoking the defendant’s release conditions.

The Law Offices of the Public Defender, whose attorneys represent New Mexicans accused of crime, has and continues to oppose rebuttable presumptions. However, they remained neutral on SB 271 while giving their input to the legislature.

Chief Public Defender Bennett Baur said Tuesday he sees SB 271 as a way to continue implementing the pretrial detention and release system put in place by voters when they abolished cash bail through a 2016 constitutional amendment.

While rebuttable presumptions would have made anyone stay in jail for certain crimes, SB 271 continues to require an individual determination, Baur said.

“That’s really what I think the (New Mexico) Constitution requires, and what’s important for us as defense counsel is that the Legislature not make across-the-board rules, but they give tools to the courts to apply,” he said.

Generally and even without this bill being enacted, Baur said, if someone is on release for a felony and gets out and gets arrested for another felony, “they are held anyway.”

“This is sort of saying, ‘Do what is already being done,’” Baur said. “This is not creating a whole new class of people being held necessarily. It’s just laying out, in statute, that the judge has to see it before they’re released.”

But Ivey-Soto said he doesn’t think it is being done everywhere all the time in New Mexico.

“The bill is deceptively simple,” Ivey-Soto told the Senate Health and Public Affairs Committee. “The bill is actually what used to happen automatically, and for some reason isn’t happening right now.”

Co-sponsor Sen. Joseph Cervantes (D-Las Cruces) said SB 271 is a better approach than the rebuttable presumptions measure from past sessions.

“The proposals that we’ve seen in the past on pretrial detention presume, essentially, guilt,” Cervantes said. “What that does, of course, it would encourage prosecutors to charge or overcharge for certain crimes simply to require detention for an individual who’s presumed innocent.”

Majorities of lawmakers in both the House of Representatives and the Senate voted in favor of SB 271. It now awaits Lujan Grisham’s signature. Her administration has signaled its support for the bill.

Top cop told lawmakers they had so far ‘failed to act’

SB 271 is notable in part because of how quickly it moved through the legislative process.

In general, it is rare for a bill in the New Mexico legislature to pass a committee and get a floor vote on the same day. Lawmakers did so twice with SB 271.

Ivey-Soto introduced the bill in the Senate on Jan. 31, the final day legislation could be introduced in the Roundhouse. The next day, the Senate Committees’ Committee deemed the bill germane.

The Senate Health and Public Affairs Committee passed the bill in an 8-1 vote on Feb. 2.

In that committee, New Mexico State Police Deputy Chief Dale Wagoner testified in favor of the bill.

“One of our main things that we set up is proactive enforcement teams going out and looking for violent offenders and we’ve come across people quite regularly who are still facing charges from previous charges, so we stand in support,” Wagoner told lawmakers.

The bill sat for nearly two weeks, and then quickly moved in the legislature after a press release was issued by the New Mexico Department of Public Safety Secretary Jason Bowie.

Early in the afternoon on Feb. 13 Bowie published an urgent news release telling lawmakers to “pass crucial public safety bills” with fewer than 48 hours left in the session.

Bowie did not specify what legislation he wanted to see passed but said “violent crime statistics” show “officers need more tools to protect themselves and the communities they serve.”

In fact, violent crime in New Mexico went down in 2022, according to the latest data available from the FBI, and while property crime ticked up that year, it remained at historically low levels and lower than it was in 2019. Of all New Mexicans facing felony charges who are released before their trials, 95% do not go on to get arrested for a violent crime, studies show.

“Sadly, the Legislature has, so far, failed to act — or even hold hearings — on most of Gov. Lujan Grisham’s common-sense proposal to provide such tools,” Bowie said. “This is unacceptable.”

Bowie’s statement hit New Mexico news agencies’ inboxes at 1:24 p.m. 

SB 271 was heard by the Senate Judiciary Committee at 2:39 p.m. that same day.

Headed by Cervantes, that committee swiftly passed the bill in a 6-1 vote.

Later that day, all but one of the senators present for the floor vote were in favor of the bill after just seven minutes of debate.

The House Judiciary Committee passed the bill in a 6-2 vote on Feb. 14. Later that day, the full House passed it in a 57-10 vote.

Outgoing Sen. Gerald Ortiz y Pino (D-Albuquerque) said the bill would be “a major step toward reducing the public’s concern that people are being released, committing crimes, and nothing is happening to them.”

Sen. Greg Nibert (R-Roswell) said the bill is ingenious.

“I congratulate whoever came up with this for their ingenuity in addressing that critical issue that each of our communities has faced” since the constitutional amendment, he told the Senate.

According to Baur, many of the people who are committing multiple crimes are doing so because of behavioral health or substance use disorder, and punishing them doesn’t make the community safer.

“We have to keep working on not just the punishment side and the incarceration side but on how we help people become productive members of our community,” Baur said. “That’s what community safety is: It’s not incarceration necessarily, it’s people treating each other well.”

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