On January 13, Governor Michell Lujan held a press conference with both Democrat and Republican legislators, Attorney General Hector Balderas, DA Raul Torrez, Mayor Tim Keller, New Mexico State Police Chief Tim Johnson and APD Chief Harold Medina. The Governor unveiled what she termed as “tough on crime” proposals for the 2022 New Mexico Legislative session. The crime fighting proposals included increasing penalties for gun and certain violent crimes. The most controversial proposal involves legislation calling for “rebuttable presumption” that a person charged with a violent felony is violent and must be held in jail until trial. The legislation has drawn fierce opposition from the New Mexico Defense Bar.
HOUSE BILL 5 INTRODUCED
The “rebuttable presumption” bill is House Bill 5. It is a bipartisan bill sponsored by Democratic State Representatives Marian Matthews, Meredith Dixon and Wonda Johnson and Republican Bill Rehm. House Bill 5 states that in the case of certain violent offenses, the evidence that establishes probable cause for the crime should be considered as proof that a defendant is dangerous unless proven otherwise. House Bill 5 establishes which cases will qualify for a rebuttable presumption that a person is dangerous and no conditions will reasonably protect the community. The bill also confirms “the prosecuting authority’s burden of proof in pretrial detention hearings.”
House Bill 5 identifies the crimes where “rebuttable presumption” would apply to defendants charged with first-degree murder, human trafficking, abuse or sexual exploitation of a child, and other serious violent felonies. It will also apply to defendants charged with brandishing or discharging a firearm during a felony offense or inflicting great bodily harm or causing the death of another and where there is probable cause to believe a defendant committed a new felony while awaiting trial, on probation or parole or within five years of having been convicted of a crime listed above.
REBUTABLE PRESUMPTION OF BEING VIOLENT
House Bill 5 makes it a “rebuttable presumption” that a defendant charged with a violent crime is violent and should be held in jail unless the charged defendant convinces the court that he or she does not pose an immediate threat to the public. At the very center of the proposed changes to the existing pretrial detention process is the current bail reform law approved in 2016.
The Governor wants the courts to put more people in jail pending trial who have been charged with violent crimes. Under the current reform state law, prosecutors are required to convince a judge in an evidentiary hearing that a charged defendant poses and immediate threat of violence to the public and to hold the defendant in jail pending their until trial and not allow them to post bond.
The rebuttable presumption bill shifts the burden of proof from state prosecutors, who must prove a case “beyond a reasonable doubt”, to the defendant who would have to show they are not violent nor a danger to the public in order to be allowed to be released pending trial. A defendant may feel compelled to waive their constitutional right to remain silent and take the stand to show that they are not violent. The problem is this would allow the prosecution to cross examine the defendant and solicit testimony that could be used against the defendant during a trial to get a conviction.
The Governor has this to say:
“This puts a wedge in this revolving door. … It doesn’t minimize our constitutional responsibilities to every single New Mexican irrespective of their income but it also makes really clear that the constitutional right to be safe in your home and communities is also an area that we must maintain and do something significant about.”
A link to the quoted material is here:
DEFENSE BAR RESPONDS TO REBUTABLE PRESUMPTION LAW
“The Law Offices of the Public Defender found that 22% of defendants who were held pending trial did not end up being convicted of the crime for which they were locked up. Of the 2,129 cases – where detention motions were granted – that were resolved by the end of 2020, 476 ended without a conviction. That number does not include cases that were turned over to federal prosecutors, were dismissed because of pleas in other cases or where the defendant was found incompetent, or where the defendant died.”
In other word’s, people who were charge with a crime sat in jail for weeks, months, perhaps years without ever being found guilty only to be released because prosecutors did not go to trial with charges dismissed.
The link to the quoted source material is here:
Jennifer Burrill, president-elect of the New Mexico Criminal Defense Lawyers Association responded to the proposed “rebuttable presumption” law by saying the proposal is absurd. She had this to say:
“I think it’s an unconstitutional burden-shifting. … If the state’s going to make the allegations, then they need to be the ones to prove it. … We know that a very few number of cases where people were released, even though a preventative detention motion was filed, a very few number of people have gone out to commit new violent crimes… .”
Burrell said that 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.
Jonathan Ibarra is the vice president of the New Mexico Criminal Defense Lawyers Association. He has been a public defender for eight years, but before that, he was a prosecutor for 12 years and a District Court Judge in Bernalillo County. Ibarra had this to say:
“I don’t think that people who are presumed innocent should have to prove that they should get out of jail. … 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. … This whole [criminal justice] system is predicated on innocent until proven guilty… We don’t get to punish people because of something we think they did. You have to prove it and proving it means actually proving it – it doesn’t mean keeping somebody sitting in jail as some sort of other fix.”
The links to quoted source material are here:
The link to a related blog article is here:
LEGISLATIVE FINANCE COMMITTEE
The mission of the Legislative Finance Committee (LFC) is to provide the Legislature with objective fiscal and public policy analyses, recommendations, and oversight of state agencies to improve performance and ensure accountability through the effective allocation of resources for the benefit of all New Mexicans. The LFC is governed by 16 elected officials in both the New Mexico House and the New Mexico Senate. Both Republicans and Democrats are represented proportionally. LFC is staffed with more than 40 permanent, year-round staff and they are considered a non-partisan staff. The LFC minimum qualifications for work include bachelor or master’s degree or other advanced degree in public administration, social science, economics, finance, education, business, accounting, or other related fields.
Since its inception in 1957, the LFC’s role in the state budget process has grown as the complexity and size of the budget has increased. The LFC makes budgetary recommendations to the Legislature for funding state government at all levels. The LFC’s oversight authority includes the criminal justice system, the courts, all District Attorney’s Offices, the State Public Defender offices, and the corrections, probation and parole department and the prison system. The LFC also prepares legislation addressing financial and management issues relating to all of state government.
LFC STUDY FINDS PRETRIAL DETENTION WILL NOT LOWER CRIME
As is the case with any legislation that has been introduced and that may have an impact on state finances, LFC analysts compiled statistics and reviewed the costs associated with pre-trial detention and what impact the rebuttable presumption law would have on state finances. On January 20, the LFC released a 14-page memo analysis of the proposed “rebuttable presumption of violence” system and pretrial detention. The report was also a status update on crime in Bernalillo County, law enforcement and bail reform.
LFC analysts found that low arrest, prosecution and conviction rates have more to do with rising violent crime rates than releasing defendants who are awaiting trial. The LFC report called into serious question if violent crime will be brought down by using a violent criminal charge to determine whether to keep someone accused of a crime in jail pending trial. According to the LFC report, rebuttable presumption is “a values-based approach, not an evidence-based one.” The LFC report says that while crime rates have increased, arrests and convictions have not. It goes on to say the promise of “swift and certain” justice has a more significant impact on crime rates that rebuttable presumption does not.
The LFC memo put it this way:
“Research shows the certainty of being caught is a more powerful deterrent to crime than severity of punishment. … For the criminal justice system, this means it is important to prioritize solving crimes and securing convictions, particularly for serious offenses… Neither arrests nor convictions have tracked fluctuations in felony crimes, and in 2020 when felonies began to rise, accountability for those crimes fell.
Low conviction rates compromise the certainty of justice and suggest law enforcement agencies and prosecutors need collaborative strategies to improve communication and to build better cases and bring them to swift resolution. ”
The LFC report points out that over the past 10 years, arrests and convictions have lagged behind ever increasing crime rates. According to the LFC report:
“Albuquerque’s violent crime rate rose by 85% from 2012 to 2017 and has since remained stuck at a persistently high level. … Over the same time period, arrests for violent offenses rose by only 20%, resulting in a widening accountability gap for the most serious offenses. Closing this gap should be the key legal goal for APD and the 2nd Judicial District Attorney’s Office.”
The LFC memo states that the percentage of cases that ended with a conviction in 2011 was 80% compared to 59% in 2020. The LFC memo did say the conviction rate deduction could be partly explained by the implementation of case deadlines or bail reform, which resulted in fewer plea deals since people were not being held in jail and had less incentive to enter a plea in a case. According to the report:
“Low conviction rates compromise the certainty of justice and suggest law enforcement agencies and prosecutors need collaborative strategies to improve communication and to build better cases and bring them to swift resolution.”
According to the memo, Albuquerque has an “accountability gap for criminal behavior” where there is little certainty that people will get arrested, prosecuted or convicted if they commit a crime. LFC analysts looked and analyzed crime and arrest data over the past 3 years. The analysts found violent crimes committed by defendants who were released pending trial made up 5% of all violent crimes in which the Albuquerque Police Department has made an arrest.
They also referred to a study by the University of New Mexico’s Institute for Social Research that found that of the people released pending trial, 81.9% did not pick up any new charges, 13.1% were arrested again on a non-violent charge, and 5% were arrested on a new violent charge. Nearly 80% of the defendants showed up to all of their court hearings.
The findings and conclusions of the LFC report are nothing new. A 2018 evaluation by the LFC made essentially an identical finding that as violent crime began rising in the 2010’s arrests and convictions declined or stayed constant.
PUBLIC DEFENDER REACTS TO LFC REPORT
The Office of the State Public Defender has said in the past that the “rebuttable presumption” policy change amounts to a “feel-good measure” that will rob people of their freedom while subjecting them to a criminal justice system that often releases defendants who have sat in jail without being tried and convicted of any crime and when a case is dismissed by the court or when charges are dismissed by prosecutors for lack of witnesses or evidence.
The Office of the State Public Defender was quick to seize on the findings discrediting supporters’ arguments that “rebuttable presumption” is part of a solution to high violent crime rates in Albuquerque and New Mexico.
Kim Chavez Cook, an attorney who handles appeals for the Law Office of the Public Defender, had this to say:
“People get maybe a sense of feeling safer in the short term by passing a bill that sounds like it will make them safer.”
Chief Public Defender Bennett Baur said he thinks the proposed bill goes way too far and too broad as to who it will apply to. Baur said the Law Offices of the Public Defender would need to hire 3 times more attorneys than they already have in order to respond to the sure volume of cases that will be generated by the new system. Baur said:
“What the bill is proposing is rather than fixing the things that aren’t going right is broadening the number of people we are going to bring into a system that is already stressed. … Significant legislation like this needs time for everyone to look at it and debate its merits, and we have not had that. … Find solutions that are based on evidence and not just upon the trend of the moment or kind of panicking in response to these problems”
GOVERNOR MLG REACTS TO LFC REPORT
When Governor Michelle Lujan Grisham’s spokeswoman Nora Meyers Sackett was asked about the LFC report’s finding that changing pretrial detention is unlikely to decrease violent crime rates, she said:
“a rebuttable presumption saves even one life, prevents one family from losing a loved one — and it will — then we will support it.”
Meyers Sackett took issue with the LFC report by pointing out two cases where defendants have been accused of committing murders while out of jail on pretrial release conditions and she said:
“These are the real-world examples of what we are working to prevent. … In addition, this legislation does not serve only to prevent homicides. It will also prevent rapes and other horrific crimes that leave victims with a lifetime of trauma, and that cycle must be stopped.”
Spokeswoman Nora Meyers Sackett reiterated that the governor’s budget proposal includes creating a $100 million fund to recruit, hire and retain public safety officers statewide and said in a statement:
“The governor’s support for these kinds of reforms, and crime and criminal justice reform in general, is driven by her understanding of the importance of ensuring that murderers, rapists and gun criminals are brought to justice and the reforms we will seek to undertake will be designed to support the systems we have in effectuating justice as well as public safety.”
DA TORREZ REACTS TO LFC REPORT
Bernalillo County District Attorney Raúl Torrez’s disputed the data relied upon by LFC analysts and said:
“It is deeply troubling that LFC analysts would fail to account for this obvious flaw in the data and give policy makers false or incomplete information.”
Lauren Rodriguez, a spokeswoman for the DA’s Office, said the LFC memo is not accurate and pointed out that the DA’s Office did not decline to prosecute over 50% of new violent crimes, as the report states, but they did have to close a number of cases in 2021 regarding the rape kit backlog because victims have died, evidence has disappeared or the statute of limitations has run out. She also said conviction rates increased between 2017 and 2020. She said the LFC report “fails to account for the fact that many of our convictions arise from consolidated resolutions that often result in substantial prison time even if other felony cases are dismissed.”
NOT THE FIRST TIME FOR TORREZ
There is nothing “flawed” with the District Courts statistics as DA Torrez has claimed. The only flawed data is what has been coming out of DA Torrez’s mouth for the past 4 years. This is not the first time that District Torrez has attempted to shift the burden of proof in criminal prosecutions and shift the blame to the courts. He did so 3 years ago when he advocated a constitutional amendment to change the bail bond reform laws. Torrez also has a history of criticizing 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 system discovery deadlines, refusing to plead cases, demanding trials or dismissal of cases when not given evidence entitled to under the law.
DA TORRRZ HAS 65% COMBINED DISMISSAL, ACQUITTAL AND MISTRIAL RATES
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 contributed to a combined 65% mistrial, acquittal and dismissal rate by the District Attorneys Office.
The District Court provided an extensive number 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 has a 65% combined dismissal, acquittal and mistrial rate with cases charge by grand juries.
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.
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 Mayor Tim Keller in a joint letter to the New Mexico Supreme Court requested 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 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
CITY AND APD REACT TO LFC REPORT
Mayor Tim Keller ignored the LFC report that the “rebuttable presumption law” will not reduce crime. Keller reiterated his administration’s support for the legislation and wants the legislature to expand the city’s Violence Intervention Program across New Mexico, increase penalties for those who use firearms while committing crimes, study gun violence through a public health lens. Keller said:
“Here’s the message from Albuquerque: This has to be fixed”
Albuquerque Police Chief Harold Medina for his part had this to say:
“We’re at a troubling time. … Crime – especially violent crime – has gotten to a level that our citizens are fed up, and I think they’ve made their voice heard very well that they demand change.”
Albuquerque in 2021 broke its annual homicide record for the third time since 2017 with 114 homicides in one year. As of January 13, the city has had 11 homicides. The city’s most recent crime data show increases in other violent crime too, but an overall dip in total crime due to lower property crime levels.”
Albuquerque Chief Administrative Officer Sarita Nair argued that a decade-long series of police pay cuts, behavioral health system problems, court-ordered speedy trial rules and a jail overcrowding lawsuit combined with a 2016 constitutional amendment for bail reform to help create a “collapse” of the criminal justice system in the city.
An Albuquerque Police Department spokesman Gilbert Gallegos said there are no simple solutions to the complex problem of rising violent crime rates. Gallegos noted that the LFC report reinforces Mayor Tim Keller’s decision to create the Metro Crime Initiative, bringing multiple parts of the criminal justice system together and he said:
“The criminal justice system is broken, and for the first time, representatives from throughout the system got together to find common ground.”
The links to quoted news source material are here:
THE COURTS BACKUP LFC REPORT
The New Mexico judiciary is strongly disputing critics like Torrez who are advocating “rebuttable presumption of being violent to prevent 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 that took sharp issue with the 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:
REVIEW OF THE HARD NUMBERS
FBI statistics reveal that Albuquerque has the dubious distinction of having a crime rate 194% higher than the national average. The City’s homicide rates are a reflection of that reality. Albuquerque has been on the forefront of the trend on violent crime increasing for the last 4 years and breaking all time records. In 2014, the city had 30 homicides and each year thereafter homicides increased and in 2019 the city had 82 homicides, the most in the city’s history. In 2021, the city ended the year with the all-time record 117 homicides.
In 2018 there were 69 homicides in Albuquerque.
In 2019 there were 82 homicides in Albuquerque.
In 2020 there were 76 homicides in Albuquerque.
In 2021 there were 117 homicides in Albuquerque.
NATIONAL HOMICIDE CLEARANCE RATES
According to the FBI’s Crime In The United States Report, following are the national clearance rates for the last 4 years:
In 2016 the national clearance rate for murder offenses was 59.4%.
In 2017 the national clearance rate for murder was 61.6%.
In 2018 the national clearance rate for murder was 62.3%.
In 2019 the national clearance rate for murder was 61.4%.
In 2020 the national clearance rate for murder was 54.4%
APD’S CLEARANCE RATES DOWN, ARRESTS DOWN SIGNIFICANTLY
For the past four years, APD’s homicide clearance rate has been worse than the national average. Review of APD budgets and news accounts reveal the following APD clearance rates:
In 2018 the homicide clearance rate was 56%.
In 2019 the homicide clearance rate was 52.5%,
In 2020 the clearance rate dropped to 50%.
In 2021 the clearance rate has dropped to 30%, the lowest in the history of APD.
APD statistics for the budget years of 2019 and 2020 reflect the department is not doing its job of investigating and arresting people. APD felony arrests went down from 2019 to 2020 by 39.51% going down from 10,945 to 6,621.
Misdemeanor arrests went down by 15% going down from 19,440 to 16,520. DWI arrests went down from 1,788 in 2019 to 1,230 in 2020, down 26%.
The total number of all arrests went down from 32,173 in 2019 to 24,371 in 2020 or by 25%.
In 2019 APD had 924 full time police. In 2020, APD had 1,004 sworn police or 80 more sworn police in 2020 than in 2019, yet arrests went down during the first year of the pandemic. APD’s homicide unit has an anemic clearance rate of 36%. The police union falsely proclaims officer’s hands are tied by the DOJ reforms and are afraid of doing their jobs for fear of being disciplined.
A criminal prosecution cannot occur unless the prosecuting agency, the District Attorney, actually charges an offender and brings them to justice. When DA Raul Torrez ran for Bernalillo County District Attorney the first time, he said our criminal justice system was broken, it was in dire need of change and he was the guy to fix it. He is now running for Attorney General.
Within six months 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 Court for being responsible for the rise in Albuquerque crime rates and releasing violent offenders pending trial. District Attorney Raul Torrez also accused defense attorneys of “gaming the system” in order to get cases dismissed against their clients.
As noted above, a report prepared by the District Court revealed that it is the District Attorney’s office that is in fact voluntarily dismissing far more felony cases for various reasons, including his office not being prepared for trial, the office’s failure to meet discovery deadlines, and prosecutor’s failure to turn evidence over to defense counsel as mandated by law and discovery court orders.
The Bernalillo County District Attorney office currently has the highest voluntary dismissal rate in its history and indicts less than half what it indicted 10 years ago. Plea agreements with low penalties are the norm. Data given to the Supreme Court by the District court revealed overcharging and a failure to screen cases by the District Attorney’s Office contributes to a combined whopping 65% mistrial, acquittal and dismissal rate.
COMMENTARY AND ANALYSIS
Simply put, violent crime rates will not go down until there are arrests, prosecution and sentencing of violent repeat offenders. Pre trial detention will not bring down violent crime rates.
Governor Michelle Lujan Grisham, Bernalillo County District Attorney Raul Torrez, Mayor Tim Keller and supporters and advocates of rebuttable presumption can complain all they want and try to disparage the LFC report. The blunt truth is that when you examine the statistics from the LFC, the courts, the DA’s office and APD, the only conclusion is that LFC is on solid ground with its finding that low arrest, prosecution and conviction rates have more to do with rising violent crime rates than releasing defendants who are awaiting trial.
It is laughable and very difficult to take serious Mayor Tim Keller, CAO Sarita Nair and Chief Harold Medina with their attempts to discredit the LFC’s findings on the “rebuttable presumption” legislation. These 3 have been in office for the past full 4 years. They are failures when it comes to brining down the city’s crime rates and murder rates. They have failed to bring down violent crime with the city’s homicide rates breaking all-time records 3 times in the last 4 years.
In 2019, in response to the continuing increase in violent crime rates, Mayor Keller scrambled to implement 4 major crime fighting programs to reduce violent crime:
1. The Shield Unit,
2. Declaring Violent Crime “Public Health” issue.
3. The “Violence Intervention Plan” (VIP program).
4. The Metro 15 Operation program.
All 4 Keller programs have now been in effect for over 2 years. Based on the statistics, it is painfully obvious that the 4 programs had very little success in bringing down the city’s high crime rates. Now Keller wants to take his failed “Violence Intervention Plan” statewide.
The statistics on Albuquerque’s crime rates coupled with APD’s statistics showing arrests down by 39.5%are difficult to refute. Then you have Bernalillo County District Attorney Raul Torrez efforts to down play his offices failures and dismissals to prosecute cases as he campaigns for Attorney General all the while his office has a whopping 65% mistrial, acquittal and dismissal rate combined.
THE PROBLEM WITH “REBUTTABLE PRESUMPTION”
Imbedded in our constitution is how justice is served, to ensure and to protect all of our constitutional rights of presumption of innocence, due process of law and requiring convictions based on evidence. The corner stone of our criminal justice system is requiring prosecutors to prove that a person is guilty beyond a reasonable doubt before a jury and in a court of law.
The biggest problem with “rebuttable presumption” being advocated 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 in this country and this state has never been perfect, nor will it ever be, but it is not broken. The criminal justice system does have its flaws and a number of inequities, but to say that it is a broken system is just plain ignorance of the criminal justice system or political opportunism at its worst.
The 3 major stakeholders in our criminal justice system that are always signaled out when it’s argued that the criminal justice system is broken are law enforcement, the prosecution and the courts. When you examine these 3 major stakeholders in Albuquerque and Bernalillo County, one conclusion that can be arrived at is that they are not doing their jobs. They also have an extensive history of blaming others for their failures.
If the Governor and the New Mexico legislature truly want to do something and bring down violent crime rates, they should demand more of and hold accountable law enforcement, the District Attorneys such as Raul Torrez and the lower courts to do their jobs. Passage of House Bill 5 will only result in it being challenged in court and it will likely be held “unconstitutional” by the New Mexico Supreme court as unconstitutional “burden of proof shifting” and a violation of the presumption of being innocent until proven guilty and denial of due process of law.
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.”
The following guest column on pretrial detention was published by the Albuquerque Journal:
HEADLINE: Pretrial detention would lock up innocent people
BY NAYOMI VALDEZ / ACLU-NM DIRECTOR OF PUBLIC POLICY
PUBLISHED: TUESDAY, JANUARY 25TH, 2022 AT 12:02AM
UPDATED: TUESDAY, JANUARY 25TH, 2022 AT 12:15AM
“Ahead of the 2022 legislative session, Gov. Michelle Lujan Grisham and allied lawmakers called for legislation that would make it even easier to detain people accused of certain felony crimes before their trials, citing public safety concerns. The legislation they propose flies in the face of the core American principle of “innocent until proven guilty” by creating a presumption against release for people accused of certain crimes.
Presumptive pretrial detention will inevitably put innocent people behind bars without requiring evidence they’ve actually committed the crime they’re accused of. Lawmakers intend to introduce this legislation even after a recent study by the University of New Mexico’s Institute of Social Research found 95% of people charged with felonies who were released pending trial between July 2017 to March 2020 were not arrested for a violent crime during their release period under current law, which was changed by a constitutional amendment in 2016 to move the state away from the unjust system of money bail. Judges can already hold people pending trial if prosecutors demonstrate they pose a threat to public safety. The proposals for the 2022 session would not require any such evidence. This will lead to hundreds of additional people being jailed before trial and will further dilute our constitutional rights.
Lawmakers’ intentions are rooted in concerns for public safety. But good intentions don’t make for good policy. Evidence does. And the evidence shows our pretrial system is largely working. It has and will continue to improve in response to developing data and experience, but it isn’t broken.
Moreover, locking more people up pretrial is actually likely to have an adverse effect on public safety. Jail time can result in a lost job, lost income, eviction and even loss of child custody. Many people wind up pleading guilty just to go home. Even after a person is released from jail, they must live with the trauma of incarceration and the permanent stigma associated with jail time, which may prevent them from finding employment or housing. Lack of stable employment and housing, in turn, often leads people to turn to illicit means of earning money.
The tragic truth is nobody comes out of jail in a better position to take care of themselves or their family. Many people charged and held, even under the current system, are never found to have committed the crime they were charged with. That injustice would only grow if people were held in greater numbers.
During the COVID-19 pandemic, incarceration in an overcrowded, understaffed jail carries the additional risk of severe illness and death. That risk extends to surrounding communities where jail staff live.
Public safety is understandably a top priority for our communities. But these proposals will not make us safer. New Mexico’s elected officials should not sacrifice people’s liberty and lives for political points. To truly increase public safety, lawmakers must pass legislation that actually addresses the underlying causes of crime in order to reduce crime in our communities.
We can have a fair justice system that upholds people’s rights while keeping communities safe. But to do that, we have to free ourselves from the belief the more people we put behind bars, the safer we’ll be. The opposite is true.”
The link to the guest column is here: