Some lawmakers unconvinced ‘rebuttable presumptions’ bill would make it through the courts

Chairman of Senate Judiciary Committee says prosecutors are ‘dead wrong’

By: - January 31, 2023 5:05 am
A man sits in the center of a curved wooden rostrum, looking at someone else off camera. Behind him, mounted on a wooden wall, is the seal of the New Mexico Senate.

Senate Judiciary Committee Chair Sen. Joseph Cervantes (D-Las Cruces) said after hearing arguments from proponents of the “rebuttable presumptions” bill on Monday, he remains convinced that it would be found unconstitutional by the courts if enacted into law. (Photo by Austin Fisher / Source NM)

New Mexico’s governor and the district attorney for the largest county in the state are working to convince lawmakers to change the way pretrial detention hearings work by saying they want to balance the rights of people accused of crimes with their impression about public safety.

Whenever prosecutors ask a judge to hold someone accused of a crime in jail until trial, they must prove that no release conditions will reasonably protect the safety of another person or the community. 

In other words, they have to show that depriving that person of their liberty is the only option left on the table.

Senate Bill 123 would create a “rebuttable presumption” to shift that burden of proof onto the defendant. The bill is sponsored by Sen. Linda Lopez and Rep. Meredith Dixon, both Albuquerque Democrats.

It has support as a top priority by Gov. Michelle Lujan Grisham, Bernalillo County District Attorney Sam Bregman and other prominent Democrats in the Roundhouse.

Sen. Joseph Cervantes (D-Las Cruces), chair of the Senate Judiciary committee, assembled a meeting on Monday afternoon to hear arguments about whether the proposal would stand up to constitutional review by the state’s courts if it became law.

Bregman said he believes in the presumption of innocence, “But I also believe that the community at large — that the people out there that all of us represent, that you represent — have a right to feel some type of safety.”

Bregman’s comments echoed a statement issued later on Monday by the governor.

“I fully understand the importance of balancing the rights of the accused and the rights of the public,” Lujan Grisham said in a news release. “This legislation threads that needle, ensuring a safer New Mexico in the process. I look forward to continuing to work with legislators to get this bill across the finish line.”

New Mexico Department of Public Safety Deputy Secretary Benjamin Baker attended the meeting on behalf of the governor.

He told senators that the goal of the legislation is to “differentiate those folks, where probable cause has been determined, are likely to reoffend in a way that endangers the public or the victims in the case that’s previously charged.”

Sen. Katy Duhigg (D-Albuquerque) asked Bregman how lawmakers would be protecting their communities by passing a law that would be found unconstitutional.

Bregman responded by saying there are a lot of lawyers in the DA’s office who don’t think the court would find the law to be unconstitutional.

“I’m not convinced of anything different after today’s hearing,” Cervantes told Bregman. “I think the attorneys who are telling you this could be done constitutionally are just dead wrong.”

Supreme Court already gave guidance

Rebuttable presumptions are unconstitutional, Kim Chavez-Cook, an appellate defender with the Law Offices of the Public Defender, told the committee.

“The Constitution of New Mexico is very clear that the state bears a burden of proof: of clear and convincing evidence,” she said, “And any use of a rebuttable presumption relying on different evidence to meet that burden is directly contrary to that constitutional provision.”

She said in interpreting that part of the constitution, the state Supreme Court has repeatedly made clear the state’s burden of proof has two requirements: the accused person is dangerous, and no conditions of release will reasonably protect the community from them.

In the 2022 Legislative Session, many tried to predict what the New Mexico Supreme Court might say in response to rebuttable presumptions legislation, Chavez-Cook said. But now there is some guidance from the court in a June 2022 opinion.

NM Supreme Court strikes down attempt to weaken bail reform

The Supreme Court unanimously concluded if it allowed New Mexico prosecutors to send someone to jail until trial based only on the circumstances of what is said to have happened, it “would all but eliminate” the burden on the state to prove someone is too dangerous to hold onto their freedom, Chief Justice Michael Vigil wrote.

Chavez-Cook said the opinion reiterates the nature and circumstances of the current charges against someone are enough to prove someone is dangerous. In other words, there’s no question that someone having committed a very dangerous crime, or having probable cause to believe they have, can satisfy that part of the test.

“But the court also made it very clear that the nature and circumstances of the charges cannot also satisfy the second prong of that test,” she said.

“In my view, rebuttable presumptions based on probable cause of the charges, establishing the state’s burden of proof — or even subject to rebuttal, establishing the state’s burden — is exactly what the Supreme Court has said is not consistent with the state constitution,” Chavez-Cook said. “That seems to me to squarely answer the question.”

Many held in Albuquerque never convicted

The proposal runs the risk of being over-inclusive and creating false positives, she said, by just assuming someone is dangerous based on the current charges.

In Albuquerque between 2017 and 2022, the entire time the current bail system has been in place, in cases where judges granted prosecutors’ pretrial detention motions, 23.8% of people held in jail were not ultimately convicted of anything, according to data from the Law Offices of the Public Defender.

Another 120 people ended up pleading their charge down to a misdemeanor.

“So those people were held in detention and were not convicted of anything, or were convicted of a misdemeanor,” Chavez-Cook said.

There would also be other downstream constitutional problems if New Mexico adopts rebuttable presumptions, she said, including the possibility of making the conditions of jails in the state even worse.

Holding presumptively innocent people in already overcrowded jails, with very reduced staffing, could lead to additional constitutional concerns, she said. 

“Frankly, I think we’re there already, but any increase in the number certainly is going to worsen that situation,” Chavez-Cook said.

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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.