Proposal to erode bail reform gaining steam

A change to the law backed by the governor and other officials would destroy the presumption of innocence, attorneys say

By: - January 12, 2022 5:30 am

(Getty Images)

A proposal likely to come up this month in the regular legislative session would shift the burden of proof onto people accused of crimes to prove that they are not a “threat to the community” as judges weigh whether they should wait for their hearings behind bars or at home. 

As things stand, the burden is on prosecutors and police who are making the accusations.

Republican Rep. Bill Rehm on Jan. 5 pre-filed the legislation for the upcoming session.

The bill represents an effort to roll back aspects of bail reform in the state and would allow judges to incarcerate people before trial for certain offenses — without prosecutors having to demonstrate they pose a threat to public safety.

“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,” Democratic Gov. Michelle Lujan Grisham told the Albuquerque Journal last year.

But the proposal is getting pushback from public defenders and criminal justice advocates in the state.

Jonathan Ibarra said the proposal would violate the New Mexico Constitution and result in numerous people needlessly being held in jail. He has been a public defender for eight years, but before that, he was a prosecutor for about 12 years and a district court judge in Bernalillo County. He is the vice president of the New Mexico Criminal Defense Lawyers Association.

“I don’t think that people who are presumed innocent should have to prove that they should get out of jail,” he said. “Shifting the burden onto primarily poor people, primarily people of color, to somehow prove a negative, to prove that they’re not going to do something bad — I don’t know how you prove a negative.”

Jennifer Burrill, president-elect of the New Mexico Criminal Defense Lawyers Association, said the proposal is absurd.

“I think it’s an unconstitutional burden-shifting,” she said. “If the state’s going to make the allegations, then they need to be the ones to prove it.”

Case law in New Mexico requires the state to prove that a defendant is dangerous to the community. But once many of these cases get into the trial process, prosecutors just don’t work the cases, and so the defendant needlessly sits in jail, she said.

Bail reforms reduced crime and recidivism

Proponents of rolling back bail reform have pointed to cases where someone released while awaiting trial has gone on to commit additional crimes — especially focusing on violent crimes. But in the overwhelming majority of cases, that doesn’t happen, and the harmful life impacts of imprisonment for people who have not yet been convicted of anything have to be considered, opponents argue.

The yearslong effort to get rid of the dysfunctional cash bail system in New Mexico was spearheaded by the late Charles W. Daniels, a two-term chief justice on the state Supreme Court.

In an interview in late October 2018, just two months before he retired, Daniels said the cash bail system didn’t protect public safety and resulted in many people held in jail because they didn’t have money — not because there was any evidence of threat to the community.

“This is no way to decide who gets held and who gets released, based on who can buy their way out,” he said.

Despite huge efforts by the lucrative bail bonds industry, the measure passed with more than 90% of lawmakers’ support, he said. At the ballot box, 87% of New Mexicans approved the change, which Daniels said was extraordinary for a constitutional amendment.

The constitutional amendment gave judges the power to deny release to provably high-risk defendants, he said, and provided that you can’t keep someone in jail simply because they can’t afford to pay bail, unless the court later found that some amount of security was needed to get them back to court.

Daniels said over and over, in jurisdictions across the country, that amount of security was “rarely needed.”

The amendment also took away judges’ power to determine that issue on their own without a formal motion by prosecutors, he said, who now must prove that the defendant is too dangerous to release.

Despite the arguments of the opponents — primarily the money industry — that our bail reform rules were causing an increase of crime and endangerment of the public, you saw a dramatic reduction in the crime rate starting with the month of reports after July 1st, after our reforms went into effect.

– Justice Charles W. Daniels

It’s irresponsible to try to say with certainty that there’s a cause-and-effect relationship between bail reform and high crime rates, he said, because crime rates here and in other jurisdictions actually fell dramatically after they implemented bail reform. The same is true for recidivism rates, he said.

“Anybody who has studied this seriously knows that it’s a lie that these reforms have caused an increase in crimes, and yet you see it repeated in political elections, because it gets votes,” he said.

Daniels died less than a year later on Sept. 1, 2019.

A University of New Mexico study found that between 2017 and 2020, 95 percent of people released pre-trial did not go on to get arrested for a violent crime.

Ibarra said that pattern hasn’t changed much since then.

Ibarra, who now sits on the Supreme Court’s Ad Hoc Pretrial Detention Committee, said he thinks there has been a small uptick in the rate of people who are released and go on to pick up new charges, but that’s because cases are taking so much longer to resolve during the pandemic.

Ibarra tracks every single detention case filed in Bernalillo County, the largest court system in the state, since they started in January 2017.

In Albuquerque, he said, there have been six people who have been released pre-trial who allegedly committed homicide while they were out. But there have been nearly 6,000 cases of preventative detention filed in Albuquerque, he said.

In the best-case scenario for the state, when a judge grants a motion to hold a defendant, about 22% of them get no state conviction at all, not even a misdemeanor, according to his records.

Far too often, people sit in jail for years before they’re acquitted, he said.

“We’re too eager to punish before we prove a case,” he said.

He said the state needs a better screening process at the beginning and needs to put more resources into actually proving cases, rather than just holding people.

Ibarra agrees that this argument made by the governor and others fails to account for the violence of jail itself, and the fact that pre-trial detention actually drives further criminality.

Even just a few days in jail can completely change a person’s life, he said, because jail time can cause people to lose their jobs, homes, families and children.

“Even if jail was an OK place to be, it would still be awful, what jail does to people,” Ibarra said. “But it’s a horrible place to be, and so everything about it is inherently destabilizing for a person.”

Editor In Chief Marisa Demarco contributed the 2018 interview with Justice Daniels to this story.


A previous version of this story incorrectly reported the percentage of jailed defendants who do not get a state conviction. 

This story was updated to reflect the correct information on Wednesday, Jan. 19. 

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Austin Fisher
Austin Fisher

Austin Fisher is a journalist based in Santa Fe. He has worked for newspapers in New Mexico and his home state of Kansas, including the Topeka Capital-Journal, the Garden City Telegram, the Rio Grande SUN and the Santa Fe Reporter. Since starting a full-time career in reporting in 2015, he’s aimed to use journalism to lift up voices that typically go unheard in public debates around economic inequality, policing and environmental racism.