On January 13, Governor Michell Lujan held a press where she 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.
The Governor wants the courts to put more people in jail pending trial who have been charged with violent crimes. Under the current 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.
Governor Michell Lujan’s demand for changes in the states pretrial detention laws is no doubt associated with the dramatic spike in violent crimes. The City of Albuquerque broke an all-time record in homicides in 2021 with 117 homicides. Nine homicides have already been reported in January along with two others in parts of Bernalillo County.
HOUSE BILL 5
House Bill 5 (HB5) is the proposed pretrial detention bill and it would create a rebuttable presumption of dangerousness for defendants charged with certain violent crimes. It is a bipartisan bill sponsored by Democratic State Representatives Marian Matthews, Meredith Dixon and Wonda Johnson and Republican Bill Rehm. Governor Michelle Lujan backs enactment of HB5 as part of her anti-crime legislation.
HB 5 identifies the crimes where “rebuttable presumption” would apply to include 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.
Under HB 5, if prosecutors file pretrial detention motions in violent crime cases and are able to meet the probable cause standard for the crime, the burden of proof would then shift to the defendants charged with a violent crime who would then have to prove to a judge that they are not violent and that they should not be held in jail until trial under the presumption they pose a “danger to any other person or to the community.”
SPONSOR ASKS HB5 BE “TABLED”
On January 26, Representatives Marian Matthews, one of the sponsors, presented HB 5 before the House Government, Elections, and Indian Affairs Committee for explanation and committee recommendation. After numerous questions were raised regarding the bill’s constitutionality or legality, Mathews decided to pull the bill from consideration. In pulling the bill, Mathews had this to say:
“As I’m listening to the conversation and the questions and so forth, I think there’s a number of issues that have been raised that require some additional thought. … Yeah, pull the bill at this point and let us do a little bit more work and interactions with some of the people who are raising concerns. I think that would probably be the best at this point. … This problem of violence is not going to go away. … We need solutions.”
The committee is scheduled to meet again January 28 and if the bill is re-worked, Matthews can bring it back to the committee for consideration.
CONCERNS RAISED BY COMMITTEE MEMBERS
During the committee hearing, Roswell Republican Representative Greg Nibert noted the 2016 constitutional amendment approved by voters on bail bond reform and had this to say:
“All my concerns are constitutional in nature. … The citizens of New Mexico changed the constitution, and so in my view the legislative process is somewhat constrained in this regard because of what the people of New Mexico did in 2016. … In my view, it’s the people of New Mexico who are going to have to make the change.”
During the committee hearing, Corrales Democrat Representative Daymon Ely, who is also an experienced and respected trial attorney, asked Bernalillo County Chief Deputy District Attorney James Grayson questions about the prosecutor’s claim that the Supreme Courts Case Management Order, which imposes deadlines prosecutors must meet, was tying up law enforcement officers and keeping them off the streets.
Ely said the legislation is not well thought-out and would be quickly challenged in court if enacted. Ely also questioned why lawmakers would make changes to New Mexico’s pretrial detention laws after recent reports found low arrest, prosecution and conviction rates have contributed more to Bernalillo County’s crime problem than releasing defendants awaiting trial. Ely had this to say:
“I do not know why we’re not following the data. … None of us wants to have violent offenders on the streets.”
What Ely was referring to was the 14-page memo Legislative Finance Committee 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.
The links to quoted news source material are here:
LEGISLATIVE FINANCE COMMITTEE REPORT
On January 20, the Legislative Finance Committee 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 and 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.”
“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 LFC analysis of HB 5 suggested the proposed change in pretrial detention could lead to 1,262 additional defendants being held until trial per year, at an estimated annual cost to county jails of $13.8 million. The report found that the benefit to detaining those defendants could lower the statewide violent crime rate by 1.4% and prevent an estimated 190 crimes per year, including one homicide, according to the analysis.
UNM LAW PROFESSOR WEIGHS IN ON CONSTITUTIONALITY OF HB 5
UNM Law Professor Joshua Kastenberg was contacted by KOB Chanel 4 and asked him if he felt HB 5 allowing “rebuttable presumption of dangerousness for defendants” was constitutional and he said:
“My sense of this bill is unless it’s re-written, it’s constitutionally problematic. Not because of the way it was generated, or proposed, but because it does in fact shift a burden onto the defendant. …Although the last section of House Bill 5 states that no burden has shifted to a suspect, or a defendant, in point of fact the bill does just that, it shifts a burden. … In the world of criminal law, the burden is always supposed to be on the government.”
Professor Kastenberg did say that HB5 could be fixed, but it must be done to withstand constitutional review:
“I think you [must include or] have a section that’s added in there that states that the prosecution must produce some evidence that there’s a likelihood of future dangerousness to the community or a flight risk. … It’s a reasonable idea and you know the frustration of the people is very real I don’t discount that. But the people of the state deserve a bill that will withstand the courts too.”
The link to the full KOB report is here:
COMMENTARY AND ANALYSIS
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 and a finding guilt beyond a reasonable doubt. The corner stone to our criminal justice system is to require prosecutors to prove that a person is guilty beyond a reasonable doubt before a jury and in a court of law.
The “rebuttable presumption of being violent ” being advocated takes away the role of a judge to provide due process of law to a defendant. Simply put, “rebuttable presumption of being violent” means if you are charged with a violent crime, you are not entitled to bond or any conditions of release and a judge must order you to sit in jail pending trial, which could be days, weeks, months or even years. The problem is, with “rebuttable presumption of being violent ” a charged defendant essentially begins a criminal sentence before ever being found guilty of a charge and all too often charges may be dismissed or a defendant is found not guilty by a jury. What you have with “rebuttable presumption of being violent” is that a charged Defendant is presumed guilty until the Defendant proves that they are innocent.
The approach is back assed backwards. The rebuttable presumption shifts the burden of proving dangerousness from the prosecution to the accused defendant of violent crimes to convince the judge that they do not pose a danger to the public and should be released on bond or conditions of release pending their trial on the charges. “Rebuttable presumption of being violent” 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 criminal justice system in this country and this state has never been perfect, nor will it ever be, but it is not broken as many want to say. 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, especially from those running for office such as DA Raul Torrez who is now running for Attorney General.
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 , 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.
LAW ENFORCEMENT
APD statistics for the budget years of 2019 and 2020 reflect that APD 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%. Bookings at the jail have plummeted from 38,349 in 2010 to 17,734 in 2020. To have booking, there must be arrests. APD’s homicide unit has an anemic clearance rate of 36%.
THE PROSECUTION
When Raul Torrez ran for DA the first time, he said our criminal justice system was broken. Torrez accused the District Courts of being responsible for the rise in crime and releasing violent offenders pending trial. Torrez accused defense attorneys of “gaming the system”to get cases dismissed against their clients. A report to the Supreme Court prepared by the District Court revealed it is the DA’s office dismissing more felony cases for various reasons than the courts. The DA’s office currently has the highest voluntary dismissal rate in its history, and plea agreements with low penalties are the norm. Data given to the Supreme Court revealed overcharging and a failure to screen cases by the DA’s Office contributes to a combined 65% mistrial, acquittal and dismissal rate.
THE COURTS
A negative perception of the courts is created when judges release violent felons and not holding them for trial without bond. It’s common knowledge that Judges are concerned about their disqualification rates, appeals and reversals and how they are perceived by the Judicial Performance Evaluation Commission. Judges are reluctant to make decisions and hold off on making the hard decisions to avoid controversy to protect their jobs. The courts need to hold law enforcement’s and prosecutor’s feet to the fire and make it know to them that sloppy work and laziness is no excuse for violating constitutional rights of presumption of innocence.
FINAL COMMENTARY
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 prosecution and the courts to do their jobs more effectively and efficient.
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.”
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POSTSCRIPT
Public Defender Felony Trial Attorney Jeff Rein issued a statement to New Mexico Politics with Joe Monahan expressing his views on pretrial detention. According to Rein, it is the Bernalillo County District Attorneys Office that is in need of change in order to keep more violent offenders in pretrial detention, not a change in state law. Rein had this to say:
“The vast majority of my cases involve violent felonies. The one factor that doesn’t get attention around bail reform is the actual performance of the D.A.’s office. It is unacceptable that the success rate for preventive detention by this DA’s office is around 50%. This is not a judge problem or a rule problem. The other judicial districts in New Mexico have much higher success rates and do not seem to have the same concerns as DA Raul Torrez.
I believe there are three reasons for this sad record.
1. The State’s motion for preventive detention is prepared and filed by a supervisor based primarily on the charges upon arrest. There is almost no attention given to the unique characteristics of the defendant or the crime such as the number and reliability of any witnesses, date of prior arrests and convictions, job status, family ties, etc. The motion for detention is then passed to another attorney to actually prepare and argue the motion in court.
2. The DA has a real staffing issue. There are few courtroom attorneys with more than 5 years experience in the office. Inexperienced attorneys either don’t have the time or the experience to pull together a compelling presentation to the judge on questionable cases.
3. They almost never bring a witness; not the arresting officer, not the victim, not a bystander. They present a criminal complaint, the defendant’s criminal history if they have one, the risk assessment prepared by pretrial services, and sometimes court documents from prior cases – that may or may not have been dismissed pretrial – to show that the defendant is a terrible person.
Most of the judges want to do the right thing but the DA has to bring a compelling case and prove by clear and convincing evidence that this particular defendant poses a risk to the safety of the community. A live witness can usually make the case more compelling and real for a judge. This really is just an Albuquerque problem that other parts of the state have solved. Raul can’t figure out how to play the game so he wants to change the rules. Wrong approach.”