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Lawmakers wrestle with new bail system

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Taos County sheriff’s deputies patrol outside the Taos County Courthouse after it was closed for security reasons. A judge had received threats after a ordering the release of suspects in a high-profile case. (Eddie Moore/Journal)

Copyright © 2018 Albuquerque Journal

State lawmakers – even within the same party – clashed Friday over how to help prosecutors and judges carry out a 2016 constitutional amendment that reshaped New Mexico’s bail system for defendants awaiting trial.

Legislators heard from prosecutors who proposed changes aimed at making it easier to keep people in jail when they’re charged with certain crimes. They suggested amending the state Constitution again to shift the burden of evidence more squarely to the defense, not prosecutors, during court hearings to determine whether, say, a murder suspect should be held before trial.

But a state Supreme Court justice and public defenders said that New Mexico should give the new bail system time to work and that it already strikes the right balance between allowing detention for dangerous suspects while also protecting people’s rights to be free if they haven’t been convicted. They disputed the notion that murder suspects are walking free under the current system.

“Our judges are not releasing people willy-nilly, as has been claimed,” Supreme Court Justice Charles Daniels told lawmakers in Friday’s legislative hearing at the Central New Mexico Community College.

The 2016 amendment, approved by voters, allows a court to deny bail if a prosecutor proves by “clear and convincing evidence” that a suspect is too dangerous to be released, even with conditions. The amendment also says people who aren’t dangerous or a flight risk cannot be detained simply because they’re too poor to post bail.

Under the old system, everyone was entitled to bail unless they were charged with a capital offense.

In any case, no one seemed to dispute that the Legislature should act to address New Mexico’s high crime rate. Lawmakers, however, were split over how far to go.

Democratic Sen. Jacob Candelaria and Republican Rep. Bill Rehm, both of Albuquerque, suggested the state should make it easier for prosecutors to win approval to keep people in jail.

Candelaria said that California, in its own bail overhaul this year, created a legal presumption that people charged with first-degree murder or certain other crimes should be held before trial, unless the defense has enough evidence to show that it’s safe to let them out.

“I find it concerning that New Mexico is far left of California – that we’re more liberal than California,” said Candelaria, whose district covers part of the West Side.

But Senate Majority Leader Peter Wirth, D-Santa Fe, said it’s unfair to blame the constitutional amendment for the “public safety crisis” in New Mexico. The amendment actually helped matters, he said, by replacing the old bail system in which defendants with money just had to come up with enough cash to get out of jail, regardless of how dangerous they were.

And poor defendants, Wirth said, would remain in jail awaiting trial even if they weren’t dangerous.

“They’re closing prisons in Texas,” he said, “because they figured out that just locking everybody up is wildly expensive and isn’t the way to deal with it.”

Wirth, one of the highest-ranking members of the Legislature, where Democrats control both chambers, said it’s now up to lawmakers to provide enough funding to allow prosecutors, judges and defense attorneys to handle their legal workload under the new system. And the state’s judiciary can make rule changes aimed at addressing problems, without requiring a new constitutional amendment.

The solution, Wirth said, “isn’t redoing the Constitution. It’s redoing the rules and working on the resources.”

After years of tight budgets, an oil boom in southeastern New Mexico is expected to help provide well over $1 billion in new money beyond this year’s spending levels.

Prosecutors, meanwhile, say the new bail system created an extra burden on their already-stretched offices. They have to evaluate whether a new defendant is dangerous and, if so, prepare evidence to win a court order to detain the person before trial. Even if they win, it takes time and resources.

Some prosecutors have compared the detention hearing to a “mini-trial” – a characterization judges dispute.

Public defenders, in turn, say the new system “front-loads” some of their work but that it’s a change everyone can adjust to.

Rep. Rehm, a retired sheriff’s captain whose district is in the Northeast Heights, said the public is tired of people being arrested and then let out to commit new crimes.

“My district is very upset,” Rehm said. “They want something done.”

Justice Daniels said the Supreme Court is already evaluating rule changes proposed by all parts of the criminal justice system and is likely to decide on changes before the Legislature meets in January.

But he also defended the current system. The crime rate appears to be dropping, not going up, since the bail changes went into effect, Daniels said.

Furthermore, he said, the judiciary hopes to hire someone who can provide statewide oversight of the programs that monitor defendants who are released before trial.

“It’s become clear we need somebody overseeing the whole process, all the components,” Daniels said. “All these things need to fit together. Every pretrial justice system in the country has some kind of oversight statewide.”

The judicial branch submitted a budget request to lawmakers Friday that calls for about $179 million in spending, a 5 percent increase over this year’s appropriation. The extra money would boost staffing, cover increased health insurance costs and improve automation, among other priorities.

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