SANTA FE – State legislators agree the New Mexico Constitution should be amended to allow judges to deny bail to dangerous felony defendants pending trial.
The question is whether the House and Senate can agree on a proposed amendment that includes – or doesn’t include – a second provision that would prohibit pretrial detention of nondangerous defendants solely because of a financial inability to post a money or property bond.
Opponents of the second provision on nondangerous defendants say it’s a “poison pill” and that a proposed amendment can’t pass both the House and Senate if it’s included. Supporters say a proposed amendment can’t pass the Legislature without it.
On Tuesday, the Democratic-controlled Senate voted 29-9 to approve a proposed amendment, Senate Joint Resolution 1, with both provisions, with all the opposition coming from Republicans. An attempt to strip the provision dealing with nondangerous indigent defendants from the proposed amendment was defeated 26-14.
Pending in the Republican-controlled House is a proposed amendment, House Joint Resolution 13, that includes only the provision dealing with pretrial detention of dangerous felony defendants. More half of the House members, including Democrats, are co-sponsors.
Currently, under New Mexico law, nearly all defendants are entitled to reasonable bail – even defendants who face serious charges and have a track record of violence. Any proposed amendment approved by the Legislature would go before voters in November.
Much of the debate on the Senate floor centered on the provision dealing with nondangerous indigent defendants. Opponents argued it would lead to a collapse of the bail bond industry; that the industry’s work in tracking down those who fail to appear in court would be transferred to government at taxpayer expense and that repeat offenders would be able to repeatedly get out of jail without posting bail.
“The last thing I want to do is contribute to more crime,” said Sen. Lisa Torraco, R-Albuquerque.
Several senators also noted that judges already can release nondangerous poor defendants from jail on their own recognizance or on unsecured bail. And some said they fear that voters would reject a proposed constitutional amendment that included the provision on those defendants.
Sen. Peter Wirth, D-Santa Fe, the chief sponsor of the two-part proposed amendment, said that New Mexico’s current bail system treats people differently based solely on their wealth and that the proposal would enshrine equal protection for the poor in the Constitution when it comes to bail.
Wirth cited a survey by the New Mexico Association of Counties that found 39 percent of jail inmates are being held before trial because they haven’t posted bail. Many of those inmates will spend more time in jail awaiting trial than they eventually will be sentenced to for their crimes, he said.