Copyright © 2021 Albuquerque Journal
Prosecutors and police have argued unsuccessfully that New Mexico’s bail reform law needs to be tweaked to make it tougher for defendants charged with violent felonies to be released while awaiting trial.
While their past legislative efforts have fallen short, they have gained an important ally in Gov. Michelle Lujan Grisham, who says she wants to see changes in the state’s pretrial detention system.
“I believe a rebuttable presumption for individuals accused of violent crimes can be a wedge in the revolving door of repeat violent offenses that have characterized the worst aspects of the crime our state continues to experience,” Lujan Grisham said in a statement to the Journal.
As the system works now, to have a defendant charged with a violent felony held prior to trial, prosecutors must show the accused represents a danger to the community – and that there are no conditions of release that will protect the community.
Lujan Grisham, who is seeking reelection, said she wants to shift the burden of proof so that people charged with violent offenses are required to show they can safely be released.
Bernalillo County District Attorney Raúl Torrez, a candidate for the Democratic Party’s nomination for attorney general who has pushed for similar changes in the past, said he welcomes Lujan Grisham’s support.
“I’m grateful for the governor’s leadership on this issue,” Torrez said.
Chief Public Defender Bennett Baur said in a statement to the Journal that fear about rising violent crime has little to do with pretrial release and that this kind of change “is guaranteed to sweep up the innocent along with the guilty.”
Baur said only 3% of people released prior to trial commit a violent crime after their release pending trial.
“I’m extremely concerned about allowing the government to hold people in jail for months just because someone said you did something.”
“We hope the governor will look at the facts and not the emotion of the issue,” Baur said.
New Mexico voters overwhelmingly approved a constitutional amendment in 2016 that largely did away with the system of money bail bonds. The change meant many low-level defendants were no longer held simply because they lacked resources to post a bond. It also authorized judges to order defendants held in custody without bond pending trial if certain conditions on dangerousness and conditions of release were met.
In 2019, Torrez sought to have the Legislature pass a law that would require judges to lock up defendants prior to trial if they were charged in certain violent crimes, like murder and criminal sexual penetration. The law would put the responsibility on the defendant facing those charges to show that there are conditions under which they could be released prior to trial.
Torrez failed to get much traction in his 2019 push to get the Legislature to consider the changes. He intends to make another attempt this coming session.
“We’re not asking for low-risk, non-violent offenders to be detained,” he said.
Torrez’s suggested legislation would create a “rebuttable presumption against release” in the crimes of first- and second-degree murder cases, voluntary manslaughter, aggravated battery in the third degree, sexual exploitation of children, criminal sexual penetration, armed robbery and human trafficking of a child.
The law also would include defendants facing new charges while on parole or with a recent felony conviction for any of those crimes.
Charges that included great bodily harm and brandishing a firearm during the commission of the crime would also be subject to a rebuttable presumption against release.
In those cases, defendants would have to show that they could be released from pretrial detention without endangering the community.
Baur said the current process allows for “truly” dangerous people to be held prior to trial.
Changing the equation, Baur said, “is guaranteed to sweep up the innocent along with the guilty. Innocent people are arrested every day, but currently there is a process that requires the government to separate the truly dangerous from those who pose little or no threat.”
Torrez points to several cases in which people charged with violent crimes were released and either absconded from court supervision or committed more crimes when they were released from jail.
This week, Trey Bausby, 19, cut off his ankle monitor and failed to show up at a halfway house on Tuesday while on release on first-degree murder charges in the stabbing death of a woman at an Albuquerque motel in January.
Prosecutors had sought to keep Bausby in custody pending further proceedings in the case, but District Judge Richard Brown ordered him released with ankle monitoring and orders to stay in a halfway house.
“The Court is putting too much faith in ankle monitors,” Albuquerque Police Chief Harold Medina said in a statement. “… Our officers and the public are at risk by these decisions.”
Prosecutors also had argued that Bausby, who was arrested in Albuquerque early Friday morning, was a flight risk and was asking people if he could borrow money so he could get out of town.
Torrez also wants legislators to look at how the state deals with felons in possession of a firearm.
“About 42% of the people we seek to detain, the crime involves possession of a firearm,” Torrez said. “We’re losing over 52% of those detention cases.”
In the federal system, a high percentage of defendants accused of gun crimes including being a felon in possession are held in custody.
Torrez says the changes he advocates would make New Mexico’s system operate more like California, Washington, D.C., and the federal system on the issue of pretrial detention. New Mexico, he has said, is an outlier.
In addition to shifting the presumption on pretrial detention, Lujan Grisham said that in next year’s 30-day legislative session she wants lawmakers to approve $100 million to fund an additional 1,000 police officer positions throughout the state.
The governor also said she wants to continue to talk with legislators about other improvements to public safety.
Earlier this month she sent 35 State Police officers to Albuquerque because of the record high number of homicides the city has seen since January.
Republicans, meanwhile, have urged her to call a special session to deal with crime, pointing out that Democratic majorities in the state House and Senate have killed 10 GOP-sponsored tough-on-crime bills in the last two years.