The effort to keep more people in jail before trial hits a wall in the Legislature

A legislative proposal supported by prosecutors and lawmakers hoping to do something about crime appears to have run into a wall: New Mexicans’ fundamental right to liberty.

“I just know that we need to do something,” said Sen. David Gallegos (R-Eunice). “This bill may not be the silver bullet, but I think as we went into the session, the governor said we’re gonna do criminal reform. And so far, nothing has passed.”

Whenever prosecutors ask a judge to hold someone accused of a crime in jail until trial, they must “prove by clear and convincing evidence” that no release conditions will reasonably protect the safety of another person or the community, said Sen. Antoinette Sedillo Lopez (D-Albuquerque). They have to show that depriving that person of their liberty is the only option left on the table. 

The standard is based on the fundamental right to due process and the legal presumption in the U.S. that everyone is innocent until proven guilty.

Senate Bill 189 would flip that entire concept on its head and instead require defendants to prove that they are not too dangerous to release before a trial.

For Sen. Jacob Candelaria (DTS-Albuquerque), it scares him that the mere allegation against someone would be enough to deprive them of their liberty, possibly for years, he said, if the bill becomes law.

That right to liberty is a fundamental one under the New Mexico Constitution, Sedillo Lopez said.

The American Civil Liberties Union of New Mexico promised there would be a constitutional challenge to an identical proposal: House Bill 5. It’s likely that other parties may also challenge the law’s constitutionality, said Bennett Baur, the state’s chief public defender in an interview.

The rebuttable presumption bill is just one of a number of proposals from the Bernalillo County District Attorney’s Office that Baur sees as a broad effort to give prosecutors more control over the process, including legislation to create mandatory enhancements for gun crimes and a past proposal to limit pretrial interviews that would have restricted the ability of the accused to examine the evidence.

When the courts determine whether legislation is constitutional, Sedillo Lopez said, there must be a very tight connection between the problem to be fixed and the means that lawmakers use to fix it. But the Legislature’s analysts penned a memo early on in the session to say that changing the law so more people are detained before their day in court is unlikely to reduce crime rates.

“I, unfortunately, do not feel like this (bill) is addressing the problem with the tight enough connection,” Sedillo Lopez said.

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SB 189 would violate constitutional language and erode due process protections, said Rikki-Lee Chavez, with the New Mexico Criminal Defense Lawyers Association.

The government cannot take away someone’s liberty without due process of law, Chavez said. The bill would create a “presumption,” she added, allowing a court to assume something is true without weighing proven facts, evidence or an individual’s circumstances.

Sen. Bill Tallman (D-Albuquerque) and the other Democratic lawmakers on the Senate Health and Public Affairs Committee agreed with Candelaria’s analysis and voted 5-3 on Monday night to sink SB 189.

A revision House-side

Despite the committee vote, supporters of the lockup measure are not relenting.

The House Judiciary Committee was set to hear HB 5 on Monday afternoon. However, committee chair Rep. Gail Chasey (D-Albuquerque) said the bill’s sponsor, Rep. Marian Matthews (D-Albuquerque), told her she “has decided she is not ready to do House Bill 5.”

There is an amendment being proposed for HB 5, Sen. Linda Lopez (D-Albuquerque) told Senate Health and Public Affairs Committee that night. Lopez is the sponsor of the measure on the Senate side. 

She did not specify the author or content of the amendment but said if the House measure was rewritten, she would seriously consider rewriting the Senate measure to match it.

Nora Meyers Sackett, a spokesperson for Gov. Michelle Lujan Grisham, said her office is deeply disturbed by a lack of urgency from the Legislature in addressing crime, which she said is “a top priority for every New Mexican and certainly a top priority of this administration.”

“New Mexicans are sick and tired of crime, and we’re not giving up on pushing for legislation that meaningfully tackles this issue,” Meyers Sackett said.

The hearings came three days after Paul Haidle, the Albuquerque deputy city attorney for policy, resigned from his position in protest of Mayor Tim Keller’s support for the bill and other tough-on-crime measures.

“For decades, politicians have introduced bills like this in an election year, in a cynical attempt to stoke fears, resulting in the racist system of mass incarceration we have in New Mexico and America,” Haidle told the committee. “It’s time that elected officials do the right thing and show authentic respect to victims of crime by offering real solutions instead of blatant attempts to further the career ambitions of certain politicians.”