Under the compromise, judges would be allowed to deny bail to dangerous felony defendants before trial.
“It allows judges to hold the worst of the worst,” House Majority Leader Nate Gentry, R-Albuquerque, said at a news conference to announce the deal.
Currently, under the Constitution, nearly all defendants are entitled to reasonable bail.
Also under the compromise, defendants who are “not detainable on grounds of dangerousness nor a flight risk in the absence of bond” couldn’t be held before trial solely because of a financial inability to post a money or property bond. A defendant would have to file a motion in court requesting relief from the requirement to post bond.
The House and Senate still must approve the compromise before the Legislature adjourns Thursday. The proposed constitutional amendment then would go to voters in November.
In addition to key lawmakers, those signing on to the compromise included state Supreme Court Justice Charles Daniels, who has led the court’s efforts on bail reform, and the bail industry.
The provision of the proposed amendment giving judges the authority to deny bail to dangerous felony defendants before trial had been widely supported by legislators; it is the provision dealing with defendants who are eligible for bail but can’t post it that had created controversy.
The bail industry argued the original language of the proposed amendment would have been a get-out-of-jail free card for defendants, would have led to judges not setting money bail and would have led to the collapse of the industry.
Gerald Madrid, president of the New Mexico Bail Bond Association, said the compromise narrowed the circumstances under which a defendant could get out of jail by claiming indigence. Jeffrey Clayton, policy director of the American Bail Coalition, said the compromise still allows judges to set financial conditions of bail.
Daniels said the compromise deals with the two problems of the current bail system: dangerous defendants getting out of jail before trial and defendants who aren’t a danger remaining in jail because they can’t post money bail.
“And I think it’s better for the taxpayers,” Daniels said of the proposed amendment. The New Mexico Association of Counties has said that about 39 percent of all county jail inmates across the state have had bail set but haven’t posted it while they await trial, costing taxpayers millions of dollars a year to house the inmates.
Prosecutors, defense lawyers, religious leaders, business groups and others supported the amendment as originally written. The Greater Albuquerque Chamber of Commerce board voted unanimously to do so.
Not everyone that has taken part in the debate over bail reform was onboard with the compromise, including the American Civil Liberties Union of New Mexico.
The ACLU supported the original provision dealing with defendants who are eligible for bail but can’t post it, but Executive Director Peter Simonson said the changes to that provision cloud the constitutional requirement that judges set bail in amounts that defendants can afford. Also, he said, the changes could lead to judges setting unreasonable bail for defendants thought to be flight risks.
Simonson said the ACLU was withdrawing its support of the proposed amendment but wouldn’t oppose it.