State legislators introduced a bail reform bill Monday that would give voters a chance to throw out, and replace, part of New Mexico’s controversial pretrial detention system, state lawmakers said.
State Rep. Andrea Reeb (R-Clovis), the former District Attorney in the Ninth Judicial District and the special prosecutor in the Alec Baldwin “Rust” killing, is sponsoring the “Denial of Bail” bill along with Reps. William Rehm (R-Albuquerque) and Stefani Lord (R-Sandia Park).
The legislation would place a constitutional amendment question on ballots in either the next general election or a special election. If passed, the amendment would “bring back bail” by broadening the conditions under which a judge can set money bail in criminal cases, Reeb told the Rio Grande SUN Tuesday.
“I firmly believe bail should be an option [in more cases],” said Reeb. “Judges shouldn’t be limited the way they are under the current law, which has led to a revolving door of criminals getting booked in, coming out, and committing new crimes.”
“Before, you locked someone up and limited additional crimes,” Reeb added. “That’s not how it is anymore, and you can’t get control of the crime when you have a system like this.”
Rehm, a co-sponsor of the bill, is a retired Bernalillo County Sheriff’s Office captain who previously introduced several pretrial detention reform bills in the state House, all of which died. He called the Denial of Bail bill “a chance to go back to the voters for a redo.”
“If the voters say ‘yes, this is what we want,’ then the amendment wipes the current [pretrial detention law] off the books and puts this new one in its place,” said Rehm. “If our bill passes, then we have a new bail system.”
New Mexico’s current pretrial release system is the result of a 2016 voter-approved constitutional amendment, which effectively eliminated the state’s money-based bail system. Critics of that system said it led to people being unfairly detained solely because they could not afford bail.
Under the current system, judges can order a person detained and set bail after their arrest only if prosecutors have evidence showing the person accused of the crime would be a danger to society. Even then, the judge might not side with the district attorney.
In Rio Arriba County, for example, prosecutors filed 49 motions for pretrial detention in 2022, according to data provided by the First Judicial District Attorney’s Office.
Twenty-four of those motions were granted, records show, while another 15 were denied by a judge. Nine others were dismissed, according to prosecutors, and one is still pending. Neither the DA’s Office nor the state courts system were able to provide the number of major felony cases prosecuted in the county last year.
Critics of the current pretrial release system, including Reps. Reeb and Rehm, said the 2016 reforms decreased public safety by allowing the release of potentially dangerous criminals back into communities—a process commonly referred to as “catch and release”—without safeguards against their re-offending.
Rehm said he understands concerns that bail reform could leave non-dangerous defendants languishing in jail simply because they can’t afford to pay a bail bond.
“But in cases where a person [released before trial] commits a murder or rape, how do you go to these victims and their families and justify their release?” Rehm said.
The proposed bail amendment, if passed, would amend New Mexico’s Constitution “to allow conditions for denial of bail to be set by the legislature…remove the limitation of bail denial to defendants charged with a felony, clarify that bail may be denied if no release conditions will reasonably ensure the appearance of the person as required and remove certain court procedural directions.”
The bill also states: “Bail may be denied pending trial if after a hearing the court finds by clear and convincing evidence that no release conditions will reasonably ensure the appearance of the person as required or protect the safety of any other person or the community. An appeal from an order denying bail shall be given preference over all other matters.”
The constitutional amendment would give judges and prosecutors much wider latitude in setting bail, Reeb said.
Both Gov. Michelle Lujan Grisham and First Judicial District Attorney Mary Carmack-Altwies, whose district includes Rio Arriba, Santa Fe and Los Alamos Counties, have spoken out in support of pretrial detention reform, of which bail is a major component.
Carmack-Altwies “supports a constitutional approach balancing public safety and the right to bail, and we expect some proposed legislation addressing this issue to be introduced in the 2023 Legislative Session,” said JoHanna Cox, spokesperson and attorney at the DA’s Office.
Prosecutors in Rio Arriba County said they currently file motions for pretrial detention in cases where the DA’s Office knows, within 24 hours of a defendant’s arrest, that the person might be dangerous.
Once a motion for pretrial detention is filed, the court sets a hearing at which prosecutors must prove that there “are no conditions of release that would ensure the defendant appear or the safety of the community,” in accordance with state law.
“The burden at these hearings is on the State to provide clear and convincing evidence,” said Cox. “Through this codified process, there is no monetary bail set as we used to see.”
It was not immediately clear whether companion legislation to the Denial of Bail bill would be introduced in the state Senate. A bill must pass both chambers of the Roundhouse and be signed by the governor to become law.
A different pretrial detention bill, filed by state Sen. Linda Lopez (D-Albuquerque), would also roll back the 2016 voter-approved pretrial reforms, which 87 percent of voters cast their ballots for.
Lopez’s legislation would create a “rebuttable presumption” that a defendant is too dangerous to be released without bail ahead of trial; the same kind of bill Lujan Grisham has said she wants passed as part of her 2023 legislative agenda.
“We will not relent from our commitment to establish a ‘rebuttable presumption’ to make sure that high-risk violent offenders stay behind bars before trial,” Lujan Grisham said in her Jan. 17 State of the State speech.
Lujan Grisham’s spokesperson, Nora Meyers Sackett, told the SUN the governor was “clear in her State of the State address that she wants legislators to deliver a bill to her desk that establishes a rebuttable presumption in order to keep repeat violent offenders off our streets.”
Passage of the proposed Denial of Bail constitutional amendment, or, alternatively, a rebuttable presumption law, would transform New Mexico’s pretrial release system into one that better protects public safety, reform advocates said.
Critics like the ACLU disagree.
According to the civil rights organization, a rebuttable presumption law would flip the burden of proof in pretrial detention decisions, making defendants accused of certain crimes prove they are not a danger to others before they’re released.
Rehm said the proposed constitutional amendment would have the same effect.
Opponents of bail reform argue that the vast majority of people accused of a felony and released pretrial are not arrested for any new crimes. Among the evidence they cite: a 2021 study of Bernalillo County cases conducted by the University of New Mexico’s Institute for Social Research, which examined more than 15,000 cases of people charged with felonies over a period of four years.
About 95 percent of the defendants studied were not arrested for a new violent crime, and less than one percent were charged with a violent first-degree felony, according to the ACLU.
Rehm said the data cited by defenders of the current system does not reflect the realities of violent crime victims and their families.
“If you look at the crimes [released defendants] have committed, some of them are heinous,” Rehm said.
Lawmakers said they may take up yet another controversial element of the state’s pretrial detention system: the Public Safety Assessment (PSA).
The PSA is computer software that uses information like a defendant’s age, criminal history and current criminal charges to evaluate the likelihood they will commit a new crime, commit a new violent crime or fail to appear in court if released before trial.
The tool is used in Rio Arriba County, Bernalillo County and dozens of other court systems across the U.S.
“With information from the PSA, judges have a base of evidence for their decision-making,” according to the New Mexico state courts website.
Using various data points about a defendant, the PSA produces two risk scores: one predicting the likelihood that a person will commit a new crime if released pending trial, and another predicting the likelihood they will fail to return for a future court hearing.
The scores determine the tool’s recommendation for release or detention, and flags defendants “it calculates present an elevated risk of committing a violent crime,” according to the state courts site.
The tool does not use “potentially discriminatory” information such as a person’s income, level of education, employment status, neighborhood or any demographic or personal information other than age, the site states.
Regardless of the PSA’s findings, decisions about whether to release a defendant always rest with a judge.
The PSA came under increased scrutiny recently when it determined that Solomon Peña—the failed Republican state House candidate accused of orchestrating a series of shootings at the homes of high-profile Democrats—could be released without bail being set.
Peña has a prior felony conviction for burglary from 2007, and a judge ordered him jailed despite the PSA’s findings.
The PSA tool was developed by the Laura and John Arnold Foundation, a philanthropic organization that advocates against pretrial detention in most cases as part of a broader effort to fight inequities in the criminal justice system.
John Arnold is a hedge-fund billionaire and former executive of Enron, the energy corporation that collapsed in 2001 amid institutionalized corporate fraud and corruption. Arnold was not accused of wrongdoing in the scandal.
The PSA software, which Arnold’s foundation gives away for free, was developed based on a data analysis of 750,000 U.S. cases.
“There’s so many unjust outcomes for people who have these criminal records,” Arnold said in a Facebook video about his foundation’s work. “It’s not good for anybody. It’s not good for the individual. It’s not good for community safety. It’s not good for our economy. And, it costs a lot of money.”
When it comes to pretrial detention, Reps. Reeb and Rehm said bail is necessary to better protect New Mexicans from violent crime.
“I think the public wants [the amendment]…they want these dangerous people in jail,” Rehm said.