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BernCo DA unveils plan for defendant detention

District Attorney Raúl Torrez

ALBUQUERQUE, N.M. — Bernalillo County’s district attorney unveiled a plan Tuesday for a constitutional amendment that would make it easier to detain defendants accused of certain crimes while expanding the grounds for imposing pretrial detention.

Raúl Torrez says his proposed constitutional amendment would simplify and strengthen the detention process, restore it to its original public safety purpose and rebuild confidence in the justice system.

His announcement comes 2½ years after New Mexico voters approved an amendment that allows the court to detain a defendant pending trial if prosecutors can show by clear and convincing evidence that no release conditions will reasonably protect the safety of the community.

“Unfortunately, our experience over the last 2½ years leads me to the inescapable conclusion that the current framework is failing to protect the public and must be addressed comprehensively through new legislation,” Torrez wrote in a letter to Gov. Michelle Lujan Grisham.

Dianna Luce, head of the state’s District Attorneys Association, said at Tuesday’s news conference that some aspects of the proposal were requested in the rule-making process for the first amendment. She said detention has been implemented inconsistently among defendants facing the same charges in different parts of the state.

The proposal aims to do four main things. It would create a “rebuttable presumption of detention” for crimes subject to a life sentence while allowing the Legislature to establish additional rebuttable presumptions. A defendant could be detained for “any one of the grounds of dangerousness, flight risk or obstruction of the criminal process,” a departure from the current system, which only allows motions based on dangerousness. It clarifies procedure surrounding detention and requires the court to rule on the merits of a request. And it creates a right to appeal.

Defense attorneys have called the plan broad and alarming. They worry about multiple aspects of the proposal, including those that change the types of evidence that must be turned over before a hearing, and the way that the motions for detention can be made to the court.

“Basically, what I read that as saying is it could be written, it could be an oral motion, it could be written on a sticky note, and so it makes it, again, more difficult for a defendant to fight these allegations,” Ben Baur, chief public defender, said.

Torrez said New Mexico is the only jurisdiction that has implemented bail reform without a presumption of detention for the commission of the most serious crimes. He also proposed that the Legislature make violent felonies, crimes involving firearms and crimes that result in great bodily harm eligible for a rebuttable presumption of detention.

Jon Ibarra of the New Mexico Criminal Defense Lawyers Association said Tuesday that might encompass a person who “has a lawful right to a firearm who happens to have drugs on them.”

“Already we have a ton of people who are being held on cases they don’t ever get a conviction on,” Ibarra said. “He wants to make it significantly easier to do that.”

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