Thoughts on Pretrial Release in New Mexico

In 2016, New Mexicans amended our unfortunate constitutional stance on pretrial release and bail.

Our bail provision was modeled after a colonial Pennsylvania constitution. Bail was important. An accused is presumed not guilty unless and until someone proves s/he is. Not so in China, Russia, Iran, or Belarus.

Bail is money deposited to ensure the court of your appearance at trial; but you must have money or property. Our system had two fatal flaws: rich folks could go home ‘til trial, while poor folks, though presumed not guilty, might stay in jail for months, unable to work, feed their families, or hug their kids. Meanwhile, some defendants who made bail robbed more stores or sexually abused more kids.

The 2016 amendment rendered financial status less crucial, and empowered judges to keep truly dangerous people in jail pending trial after a hearing. Prosecutors had to show “by clear and convincing evidence” that the person was a real danger. A 2018 case established that the hearing need not follow strict rules of evidence. Judges could rely on other reliable evidence.

Bernalillo County District Attorney Raúl Torrez, a 2022 candidate for NM Attorney-General, advocates making it easier for prosecutors to keep dangerous people off the streets. He’s seeking a law that in certain cases (such as murder, kidnapping, rape, sexual penetration of a minor, or new crimes committed while on pretrial release) there would be a “rebuttable presumption” that the defendant will stay in jail. Governor Michelle Lujan Grisham supports the proposal. Public defenders and civil libertarians don’t.

I have doubts that such legislation would be constitutional.

Presumption of innocence is a huge part of who we are, what our country stands for; and folks who’ve not experienced being “put in a cage,” as one attorney phrased it, underestimate the damage that does to a human being. When I said as much to Torrez, he differentiated between a cage and a jail cell. Certainly a jail cell is more humane, but either’s pretty grim, and can ruin your life and emotional health, or even trigger suicide.

Though some say Torrez is trying to make political capital, I take him at his word. He’s fighting an epidemic of gun violence; when he goes through the hard task of requesting a dangerous defendant be locked up, he loses more often than not; oddly, that’s even more likely if a gun is involved; and he’s seen a significant number of released defendants kill again.

Defense lawyers stress that the vast majority of pretrial releasees don’t get arrested again while out. (Torrez counters that many crimes never result in an arrest.) Defense lawyers say they get a high percentage of their defendants off, which undermines any prosecutor’s claim that s/he knows a given defendant is guilty and violent. (Sometimes, defendants win on police and/or prosecutorial errors, not innocence.)

One thing I know is that when you add a serious new duty to folks’ jobs, like showing, denying, or judging someone’s dangerousness, in court, without increasing everyone’s budgets accordingly, you invite problems.

With all due respect to Torrez and Lujan Grisham, I’m skeptical. I see the problem, but there should be a better way to harmonize individual constitutional rights with the community’s desire for safety. We must continue to improve pretrial services, even if that means little to committed criminals. Let’s also redouble our fight to keep kids from turning to crime, and provide real alternatives.

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[The above column appeared this morning, Sunday, 21 November 2021, in the Las Cruces Sun-News, as well as on the newspaper's website and KRWG's website. A related radio commentary will air during the week on KRWG (90.7 FM) and KTAL-LP. (101.5 FM – http://www.lccommunityradio.org/), and will presently be available on demand on KRWG’s site.]

[These are not easy questions. They are also not questions most people contemplate, and they involve a few terms some folks aren’t familiar with – such as a rebuttable presumption. In law, there are presumptions created by law. An example would be the presumption, which was once universal in U.S. states, that when a child is born to a married woman, her husband is the father. That made for some awkward law cases when the child had been sired by a lover, perhaps one the woman later left her husband to be with, but who couldn’t adopt the child unless the abandoned husband gave up his rights. More recently, looser mores and the feasibility of DNA-testing have been factors; but theoretically a state legislature could instruct courts (a) to presume (conclusively) that a child born in a lawful marriage is the son/daughter of the husband; (b) to presume so, but allow the other side to rebut the presumption by a bundle of persuasive evidence; or (c) to make no presumption at all. So “rebuttable presumption” just means start with that assumption, pending both sides’ presentations of evidence.

I’m not sure how that would work here, where state constitution says I have to show dangerousness by clear and convincing evidence. (For what it’s worth, we had a very interesting radio discussion of all this with Torrez, local chief public defender Kris Knudson, and Judge Conrad Perea. KTAL listeners found it instructive and accessible.)

What’s important, I think, is that while we can take very different positions on this issue, we respect both the law and each other’s views. I can’t say how having to do Raúl’s job for a month would change my views on how best to harmonize individual constitutional rights with community concern for safety.]