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. “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.
HB 5 is a bipartisan bill sponsored by Democratic State Representatives Marian Matthews, Meredith Dixon and Wonda Johnson, and Democrat Senate Majority Whip Linda Lopez and Republican Bill Rehm. Governor Michelle Lujan backs enactment of HB5 as part of her anti-crime legislation. The legislation is a priority of Democrats Governor Michelle Lujan Grisham and 2nd Judicial District Attorney Raúl Torrez.
HB 5 is vigorously opposed by public defenders and others. The state Sentencing Commission has also raised questions about its constitutionality.
VOTED OUT OF COMMITTEE WITH NO RECOMMENDATION
On January 28, after a two-hour hearing, the HB 5 cleared the House Government, Elections and Indian Affairs Committee on a 7 to 2 vote without any recommendation. Just two days before on January 26, Representatives Marian Matthews, one of the sponsors, and 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. …”
During the January 28 second committee hearing, the bill again faced bipartisan skepticism from both Democrats and Republicans. Albuquerque Mayor Tim Keller appeared before the committee and joined police and prosecutors in asking lawmakers for help addressing crime in New Mexico’s largest city and asked for passage of the legislation.
Keller had this to say to the committee:
“We’ve got 900,000 people in the metro, we just want them to listen to those people who are saying loud and clear, we need help fighting crime.”
After the hearing, no member of the House Government, Elections and Indian Affairs Committee fully embraced the proposal but they did express reluctance to reject it outright and rejected tabling the measure. Even those who voted for it expressed strong reservations. Las Cruces State Representative Greg Nibert said this:
“I would really implore the sponsor of this legislation to get a constitutional expert to look at this. … To weigh in on whether or not we need to go back to the people with a constitutional amendment.”
UNM LAW PROFESSOR WEIGHS IN ON CONSTITUTIONALITY OF HB 5
UNM Law Professor Joshua Kastenberg was contacted by KOB Chanel 4 and was asked 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.”
APD LOW ARREST RECORD
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%.
DA TORREZ HAS COMBINED 65% MISTRIAL, ACQUITTAL AND DISMISSAL RATE
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.
WHERE HB5 GOES FROM HERE
HB 5 is assigned to the House Judiciary Committee where another hearing will be held. Democrat Rep. Marian Matthews said she is willing to consider changes as the proposal moves to its next committee but rejected the contention the proposal is unconstitutional.
Voting in favor of advancing the bill were 4 Democrats and 3 Republicans. The two dissenting votes came from Democrat Representatives Daymon Ely and Gail Chasey both who are attorneys and even married to attorneys.
Chasey is chairwoman of the House Judiciary Committee and will likely excert major influence on the final fate of HB 5. Chasey does have the authority not to schedule the bill for a hearing with only 19 days left in the session.
Chasey noted that a recent Legislative Finance Committee report found that low arrest, prosecution and conviction rates may have contributed more to Bernalillo County’s crime problem than releasing defendants awaiting trial. She said in an interview:
“I just hope we actually have a solution that isn’t ignoring the reality and the data we have now.”
A Legislative Finance Committee Report estimated the bill would result in up to 1,262 additional pretrial detainees a year, at an estimated cost to county jails of $13.8 million. According to the LFC analyst report, the additional detentions could lower the statewide violent crime rate by 1.4%, preventing about 190 crimes each year.
HB 5 has a long journey to go before it becomes law, a journey that is not likely to be accomplished. HB 5 must clear the House Judiciary committee, then pass the full House and then it goes to the Senate for committees hearings and must pass the Senate by the Febraury 17 which is end of the 30-day session.
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.
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.
Ditto when it comes to Mayor Tim Keller and demanding that APD do its job of arresting and solving crimes for prosecution.
On January 28, 2022 New Mexico Politcal Report published the following article by Robert Nott, Santa Fe New Mexican:
HEADLINE: Senate Judiciary committee hears crime presentation
“Incarcerating more people won’t cut down on the state’s rising rate of violent crime, a longtime New Mexico trial lawyer told legislators looking for a solution.
Randi McGinn of Albuquerque, who has worked as both a prosecuting attorney and public defender for over 40 years, spoke to the Senate Judiciary Committee on Friday about proposed changes to the state’s pretrial detention system for defendants accused of violent crimes and other measures touted by the governor and Democratic lawmakers who have taken a tough-on-crime stance to tackle what many see as an out-of-control problem.
McGinn instead urged the committee to invest money in New Mexico’s judicial system, which she said is underfunded and understaffed.
As a result, she said, police in the state arrest about 10,000 people a year, but prosecutors charge only 3,000 of them and judges hear only 1,000 cases.
She pointed to the fiscal impact report for a bill that would alter New Mexico’s pretrial detention system — putting the burden on a defendant to prove they aren’t likely to commit further violence if they are released from jail while awaiting trial, rather than requiring prosecutors to prove the defendant poses too high a risk to be released.
The report estimates it would cost $13.8 million annually to detain up to 1,262 more defendants until their trials. McGinn said lawmakers should instead invest that money “in the courts, in the district attorneys and public defenders and the Albuquerque Police Department.”
Sen. Mimi Stewart, D-Albuquerque, said she liked that idea because the judiciary system is “weighed down and overloaded.”
The initial response to handling violent crimes, McGinn said, is “to hit it with a bigger hammer,” such as tougher penalties and detention policies. “We are doing the same thing over and over again without really stopping crime.”
Gov. Michelle Lujan Grisham has made fighting crime a priority of her legislative agenda.
Among the measures she supports during this year’s 30-day legislative session is one that would eliminate the six-year statute of limitations for second-degree murder charges. While that bill — which did not gain traction in previous legislative sessions — has not yet generated controversy, the measure that would change pretrial detention polices has been contentious.
Two recent reports on the pretrial detention system, including one from the Legislative Finance Committee, say few defendants who are released while awaiting trial are rearrested for violent crimes during that period.
But critics of the reports say suspects in several high-profile Albuquerque homicides in recent years were violent offenders who had been released ahead of their trial.
McGinn argued holding more people behind bars before their trial won’t make much of a difference.
She said New Mexico jails 773 out of every 100,000 state residents, compared to a national rate of 664 per 100,000 people. “We jail more people than most states,” she said. “Despite having doing this, it hasn’t made a difference in the crime rate.”
Many of the crime bills the Legislature is considering in the current session “don’t really do anything about crime,” she told the committee. “All they do is allow you to say that you’re doing something that everyone can see … being tough on crime.”
Sen. Greg Baca, R-Belen, disagreed. He said such initiatives are about “making our streets safer.”
“Incarceration has one benefit,” Baca said. “It reduces recidivism by keeping people in jail when they might be out committing crimes.”
But, he added, the “broad step of locking people up while they are awaiting trial is certainly not the right way. I don’t want to go the other way either. There’s got to be some in-between.”
The link to the quoted article is here: