It was in 2016 that New Mexico voters approved a constitutional amendment that largely eliminated the former system of money bail bonds. The bail bond system was severely defective because it kept nonviolent offenders in jail until trial because they could not afford to post bail.
BAIL BOND REFORM EXPLAINED
On November 8, 2016, the “New Mexico Denial of Bail Measure” was approved by New Mexico voters by a landslide vote. The Constitutional Amendment amended the New Mexico Constitution to change the conditions under which a defendant can be denied bail and not released from custody pending trial. The Constitutional Amendment was designed to retain the right to pretrial release for “non-dangerous” defendants.
Before passage of the amendment, a defendant’s bail and release from jail pending trial on charges could be denied:
1. Only for a defendant charged with a capital felony, or
2. A defendant has two or more felony convictions or
3. A defendant is accused of a felony involving the use of a deadly weapon if the defendant has a felony conviction in New Mexico.
The adopted amendment changed these requirements, allowing bail to be denied to a defendant who has been charged with a felony only if the prosecutor can prove to a judge that the defendant poses “a threat to the public.”
The adopted amendment also provides that a defendant who is not a danger to the community or a flight risk cannot be denied bail solely because of the defendant’s financial inability to post a money or property bond.
The passage of the amendment allows the courts to deny bail to a defendant charged with a felony if a prosecutor shows evidence that the defendant poses a threat to the public, while also providing that a defendant cannot be denied bail because of a financial inability to post a bond. Had the amendment failed, the bail bond system would have remained intact thereby keeping the state’s specific requirements that bail could be denied to a defendant charged with a felony if the defendant also had prior felony convictions in the state resulting in a defendant being confined in jail pending trial.
The final vote was 87.23%, with 616,887 voting YES and 12.77%, with 90,293 voting NO.
District Attorneys throughout the state argued the changes to the bail bond laws, as well as rules imposed by the New Mexico Supreme Court, made it way too difficult for them to do their jobs and prove to a judge that a defendant poses a threat to the public justifying that a violent felon be denied bail and be held in custody pending trial. As crime rates increased judges were accused of allowing “catch and release of violent felons”.
Prosecutors and law enforcement across the state repeatedly slam judges and the court system for letting out those accused of violent felonies, particularly when they re-offend. They know damn well that judges are bound by the Code of Judicial conduct and no judge can comment and defend themselves on any pending case or even make any kind of an attempt to publicly defend themselves in the court of public opinion.
In August, 2021, District Attorney Raul Torrez, Mayor Tim Keller and APD Chief Medina, severely criticized judges after a homicide suspect escaped from a halfway house by cutting off his ankle bracelet. He was later arrested without incident. All 3 have been joined by the Governor to support a “rebuttable presumption against release” in crimes including first degree and second-degree murder, voluntary manslaughter, and sexual exploitation of children.
DA RAUL TORREZ LEADING ADVOCATE
On October 6, it was reported that Democrat Bernalillo County District Attorney Raul Torrez appeared before the Albuquerque Economic Forum to criticize the criminal justice system and proclaim that New Mexico has failed voters when it comes to bail bond reform.
EDITOR’S COMMENT: Albuquerque Economic Forum has been around for decades and many members consider themselves the “movers and shakers” of the business community. The Economic Forum is decisively Republican contributing to Republican candidates and usually oppose democrats and oppose minimum wage increases, unions and supporting right to work laws.
District Attorney Torrez told the Economic forum that he supports and is seeking support for legislation in the upcoming 2022 New Mexico legislature that would make it easier for judges to hold people awaiting trial for violent crimes such as murder and criminal sexual penetration. Torrez argued that the result is that violent offenders who use a firearm are released from jail while awaiting trial only to offend again before trial.
Torrez had this to say:
“I actually lose more detention cases when there’s a firearm involved than when a firearm is not involved. … It’s one of the more bizarre aspects of the system that we’ve created. … If you are in a community that is being rocked by gun violence, you should weigh heavily the presence of a firearm in making a detention decision.”
In support of his arguments, DA Torrez offered data statistics prepared by his office from January 2017 through September 2021 showing that judges were less likely to grant motions for pretrial detention in cases that involve a firearm. The statistics Torrez presented reveal in cases of people charged with a violent crime, state judges granted 51.7% of detention motions, but in violent crime cases involving a firearm, judges granted only 49.3% of motions.
DA Torrez told the Economic Forum that the New Mexico courts have been a failure in implementing bail bond reform. He said the intent and purpose of the constitutional amendment that gives judges authority to hold defendants awaiting trial if they are deemed a risk to public safety is simply not happening.
Torrez’s proposed legislation would create a “rebuttable presumption against release” in first- and second-degree murder cases, voluntary manslaughter, criminal sexual penetration and certain crimes against children. What Torrez failed to disclose was that what he wants is to shift the “burden of proof” from the state prosecutors who must now show that a charge defendant is dangerous and shift it to the defendant to show that he or she is not a danger and should be released pending trial.
Governor Lujan Grisham and Mayor Tim Keller have joined Torrez and many other DA’s in the state to support a change in the law during the 2022 legislative session.
The link to quoted source material is here:
NOT THE FIRST TIME
This is not the first time that District Attorney Raul Torrez has attempted to shift the burden of proof in criminal prosecutions. He did so 3 years ago when he advocated a constitutional amendment to change the bail bond reform laws. It is also not the first time that Torrez has criticized the courts.
When DA Raul Torrez ran for Bernalillo County District Attorney the first time, he said our criminal justice system was broken and campaigned successfully saying he was the guy that could fix it. After being elected the first time, Torrez had his office prepare a report on the statistics regarding the number of felony cases that were being dismissed by the District Court. Torrez accused the District Courts of being responsible for the rise in crime and releasing violent offenders pending trial. The main points of the DA’s 2016 report were that defense attorneys were “gaming” the systems discovery deadlines, refusing to plead cases, demanding trials or dismissal of cases when not given evidence entitled to under the law.
The District Court did their own case review of statistics and found that it was the DA’s Office that was dismissing the majority of violent felony cases, not the courts. . Data given to the Supreme Court by the District court revealed overcharging and a failure to screen cases by the DA’s Office contributes to a combined 65% mistrial, acquittal and dismissal rate.
Torrez has also accused the District Court and the Supreme Court’s case management order (CMO) for being the root cause for the dramatic increase in crime and the dismissal of cases. The Supreme Court issued the order mandating disclosure of evidence within specific time frames and to expedite trial. Torrez challenged the case management order before the New Mexico Supreme Court and also took action against an individual judge claiming the judge was requiring too much evidence to prove that a defendant was too violent to be released with bond.
DA TORRRZ HAS 65% COMBINED DISMISSAL, ACQUITTAL AND MISTRIAL RATES
In mid-2015 the Bernalillo County 2nd District Court began shifting from grand jury use to implementing “preliminary hearing” schedule. Raul Torrez was sworn in as District Attorney on January 1, 2017 and from day one he opposed the shift to preliminary hearings. District Attorney Raul Torrez and Albuquerque Mayor Tim Keller wrote a joint letter to the New Mexico Supreme Court requesting it to intervene and stop the plans of 2nd Judicial District Court (SJDC) to shift away from the use of grand jury system to a preliminary hearing system.
The District Court provided an extensive amount of statistics, bar graphs and pie charts to the New Mexico Supreme Court to support the decision to shift from grand jury hearings to preliminary hearing showing it was necessary. The statistics revealed the Bernalillo County District Attorney’s Office under Raul Torrez had a 65% combined dismissal, acquittal and mistrial rate with cases charge by grand juries. The data presented showed in part how overcharging and a failure to screen cases by the District Attorney’s Office was contributing to the high mistrial and acquittal rates. The Supreme Court responded to the Torrez-Keller letter refusing to intervene but urging District Attorney Torrez to work with the Bernalillo County Criminal Justice Coordinating Council (BCCJCC) to resolve his concerns about ongoing cuts to the grand jury system
TORRES CHANGES HIS SONG AND DANCE, BUT MEANS THE SAME
On October 10, Bernalillo County District Attorney Raúl Torrez gave a presentation to the Greater Albuquerque Chamber of Commerce making his case to keep more people accused of violent crimes behind bars. Torrez changed his tune from saying the “criminal justice system is broken” to now saying the “state’s pretrial detention system is broken.”
Torrez told the Greater Albuquerque Chamber of Commerce:
“My biggest goal is to get pretrial detention addressed and fixed. … The presence of a firearm actually lowers the rate at which we are successfully detaining people. Let me say that again, the presence of a firearm statistically lowers the rate of detention for individuals that we move to detain . .. That defies common sense, that defies basic logic.
Now, much has been made and there have been studies produced by the Administrative Office of the Courts, in an attempt to make the case that this system is working very well. .. But, more importantly and more troubling, is the assertion that only 5% of the individuals, who’ve been arrested, have been arrested on new violent offenses are therefore are not committing new crimes.
Relying on that statistic to make a claim that ‘the system is working’ hides a very important truth.”
Torrez pointed to national crime statistics that show most crimes, even violent crimes, do not get charged and he told the Chamber of Commerce:
“The court would have you believe that because individuals in our universe haven’t been arrested for those crimes, that they aren’t responsible for them, but that’s not a claim that any credible criminologist or statistician could reasonably make.”
The New Mexico judiciary is strongly disputing critics like Torrez who are advocating “rebuttable presumption against release” pending trial and citing research that shows only a small minority of defendants commit crimes while free pending trial.
On September 15, the Administrative Office of the Courts issued the results of a report to take sharp issue with recent proposals to change the bail bond system. The study was conducted by the University of New Mexico (UNM). The report supports the proposition that the existing system does not endanger the public. The UNM study reviewed 10,289 Bernalillo County felony cases from July 2017 to March 2020 in which defendants were released from jail while awaiting trial. The statistical findings were decisive and reported as follows:
Of the cases analyzed, only 13 were arrested for a first-degree felony while on pretrial release, or about 0.1% of the total.
19% of felony defendants released from jail pending trial, 1,951 of 10,289, were arrested for new criminal activity during the pretrial period. Most of those arrests were for fourth-degree felonies and misdemeanors, including property, drug and violent crimes.
Fewer than 5% of defendants, or up to 480, released pretrial were arrested for new violent crimes. Of the cases analyzed, 95.3% were not arrested for violent crimes during the pretrial period.
Artie Pepin, director of the Administrative Office of the Courts, had this to say about the study:
“The evidence from research clearly shows that the great majority of people released pending trial are not committing new crimes. … Objective research validates the pretrial justice improvements under way in New Mexico. Blaming judges and courts for crimes highlighted in news accounts does nothing to make anyone safer.”
Not at all surprising is that Jennifer Burrill, president-elect of the New Mexico Criminal Defense Lawyers Association had this to say about the “rebuttable presumption against release”:
“That basically means [the Governor, the Mayor and DAs] are sacrificing … constitutional rights for their own political career. … We continue to ask the Legislature to make sure whatever decisions are made are based on evidence and not some kind of knee-jerk reaction, because that does not make the problem better. … That’s the same thing that we need to ask of our leaders on this situation.”
The link to quoted source material is here:
A SHIFT IN PUBLIC OPINION
Over the last 5 years since the passage of bail bond reform there has been a dramatic shift in public opinion and public demand that those accused of violent crimes be detained without bond, at least that is the case in the city of Albuquerque.
On October 29, the Albuquerque Journal released a poll conducted as part of its 2021 election coverage. One line of polling related to changes to the bail bond system. The highlights of the poll as reported by the Journal are as follows:
“A large majority of Albuquerque voters support changes to state law that would make it easier for people accused of certain crimes to be held in jail until trial …
… 77% of likely city voters favor the change.
Support is strongest among voters who identify themselves as conservative and Republican, but support cuts across all groups.
Among Republican voters, 86% support holding defendants charged with certain crimes.
[Among Democrat voters] … 71% of Democrats support the change.
… only 11% oppose it [reflecting that” among all voters polled, supporters of tougher pretrial detention laws outnumbered opponents 7 to 1.”
The poll results reflect public concern about crime, which two-thirds of city voters – 66% – identified as the biggest issue facing Albuquerque residents … ,
Support was weakest among self-identified liberal voters, and young voters. But even among these groups, sizable majorities said they supported tougher pretrial detention laws.
Among liberal voters, 60% said they support the move, and 18% oppose.
Among those 18 to 34, 62% expressed support and 25% oppose.
Support strengthened with each successive age group, with 81% of voters 65 and older expressing support, and just 5% opposed.”
COMMENTARY AND ANALYSIS
According to advocates of a rebuttable presumption, the cases where a defendant would be required to show they do not pose a threat to public and should be released pending their trial would include “the most violent and serious cases”. Those cases would include murder, first-degree sexual assault, human trafficking, first-degree robbery, crimes involving a firearm and defendants who are on supervision or parole for another felony. Such a shift of burden of the burden of proof could conceivably require a defendant to take the stand during a detention hearing before their trial and waive their 5th Amendment Constitutional Right against self-incrimination.
The biggest problem with “rebuttable presumption” being advocated by DA Torrez and others is that it undermines and is an affront to the most basic constitutional right guaranteed by the United States constitution which is the presumption of innocence until proven guilty “beyond a reasonable doubt”. Further, in our criminal justice system, both state and federal, it is the prosecution that has the burden of proof to present evidence to convict a person. The rebuttable presumption shifts the burden of proving dangerousness from the prosecution to the defendant accused of certain crimes to show and convince a judge that they should be released on bond with conditions of release pending their trial on the charges.
The criminal justice system is only as good as those responsible to make it work. When stakeholders such as District Attorney Raul Torrez say the criminal justice system is broken, they are refusing to admit they are the cause of the crisis. They are failing to do their jobs in an effective, competent manner endangering public safety.
The DA’s office currently has the highest voluntary dismissal rate in its history, and plea agreements with low penalties are the norm. Now that Torrez is running for New Mexico Attorney General, he is once again reverting back to his old habits of criticizing the courts to gain a political advantage. Making a presentation before the Economic Forum was nothing more than a pathetic attempt to fund raise by once again attacking the courts, especially when he fails to make a full disclosure of what he is really up to which is to make his job a lot easier by shifting the burden of proof in criminal cases to the defense.
In the context of “rebuttable presumption of being violent” to hold an accused pending trial, it would be wise to remember the words of Benjamin Franklin:
“Those who would give up essential Liberty, to purchase a little temporary Safety, deserve neither Liberty nor Safety.”
A link to a related blog article is here: