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Lawmakers wrestle with fallout from new bail rules

Copyright © 2017 Albuquerque Journal

It was a debate both visceral and arcane.

A bipartisan panel of New Mexico lawmakers wrestled Friday with personal rights rooted in the Magna Carta of 1215, a landmark Supreme Court decision in 2014 and new court rules issued four months ago – all centering on the treatment of defendants awaiting trial.

But the debate was peppered, too, with personal stories of home burglaries, violence and trauma.

It was almost certainly a preview of the emotional session awaiting the Legislature when it convenes in January, amid the public outcry over escalating crime. New Mexico is struggling with the nation’s highest property crime rate and the second highest violent crime rate, according to FBI data released last month.

At issue is how to protect both public safety and the rights of people who have been accused, but not yet convicted, of a crime.

The divide among legislators was clear in Friday’s hearing, held in the club building at a West Side golf course in Albuquerque.

Some lawmakers sided with Republican Gov. Susana Martinez, arguing that it’s time for the Legislature to step in and make it easier to keep defendants in jail as they await trial.

Sen. Richard Martinez, an Española Democrat and chairman of the Senate Judiciary Committee, described the trauma his sister felt after she confronted a man breaking into her house. The suspect was later released after an arrest, he said.

“Individuals are being released on a regular basis with rap sheets as long as my arm, on their own recognizance,” said Martinez, a retired magistrate judge.

He, like the governor, is also critical of the constitutional amendment – passed by the Legislature and ratified by voters in 2016 – that reshaped New Mexico’s old bail system, in which defendants could get out of jail if they came up with enough cash and promised to show up in court.

The amendment allows judges to keep dangerous defendants in custody without bail as they await trial. But it also makes clear that people can’t be held just because they’re too poor to post bail, assuming they’re not dangerous or a flight risk.

The judiciary also issued a series of new court rules earlier this year aimed at carrying out the amendment.

But some lawmakers at Friday’s meeting said the constitutional amendment isn’t the problem. The better approach, they said, is to encourage the state’s court system to adjust the rules it issued after the amendment – to strike the right balance between defendants’ rights and public safety.

Sen. Cisco McSorley, D-Albuquerque, suggested that the Legislature and public need more data on how the amendment is working in practice. The court rules have been in place for only a few months, and people should be skeptical of demagoguery on the issue, he said.

“Until we get fact-based solutions,” McSorley said, “the general public ought to reject their scare tactics.”

Rep. Antonio “Moe” Maestas, an Albuquerque Democrat and former state prosecutor, said the best thing the Legislature can do is fully fund the courts, district attorneys and public defenders, which would help ensure there are enough legal staff to monitor defendants who must be released before trial.

He walked his colleagues through the legal concept of presumption of innocence, starting with the Magna Carta signed by the king of England in 1215.

Closer to home, he explained how a 2014 decision by the state Supreme Court disrupted New Mexico’s old system of bail.

In that decision – named after Walter Brown, a 19-year-old man accused of murder – the court made clear that it’s illegal to set an excessively high bail based on nothing but what a person is accused of.

Instead, judges must make individual decisions about the least-restrictive conditions that will protect public safety and ensure the defendant’s presence at trial.

“Intentionally setting bail so high as to be unattainable is simply a less honest method of unlawfully denying bail altogether,” Justice Charles Daniels wrote in the Brown decision.

The fallout from that case contributed to the 2016 push for the constitutional amendment.

Friday’s meeting included testimony from a sheriff and a bail bondsman opposed to the changes made after the 2016 constitutional amendment.

Legislators have several options if they decide to take action.

One option is to vote to “repeal and replace” the amendment, which would take a majority vote of the sitting members in each chamber of the Legislature, in addition to voter approval. That is what Gov. Martinez, a former prosecutor, is pushing.

“It’s perfectly clear what this amendment proposed and what it delivered are very different,” Martinez spokesman Joseph Cueto said in a written statement Friday. “That’s why legislators need to listen to those who are dealing with the consequences of this misleading amendment.”

Lawmakers could also take action without touching the amendment itself, perhaps through legislation aimed at clarifying when someone must be released or kept in custody before trial. But there are limits on the Legislature’s power to shape or override a court rule, so the legality of any legislative action might be challenged.

Lawmakers could also just ask the judiciary to adjust the rules it has already issued.

“The Legislature doesn’t write criminal procedure,” Maestas said.

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