During the 2022 New Mexico 30-day session that ended on Thursday, February 17, the “omnibus crime bill” was passed. House Bill 68 is a complete rewrite by the Senate Judiciary Committee. The committee took a number of individual crime bills advancing during the session and consolidated them into one “omnibus crime” bill.
House Bill 68 was passed in an effort to bring down violent crime rates. The major provisions of the bill are:
1. Enhanced penalties for brandishing a firearm in the course of committing a serious crime.
2. Eliminates the six-year statute of limitations for second-degree murder.
3. Creates a new crime of operating a chop shop.
4. Increases penalties for metal theft.
5. Sets up a fund for officer retention payments at five-year intervals.
6. Increases the death benefit for a fallen officer’s family to $1 million.
7. Enables statewide funding for violence intervention programs similar to ones in Albuquerque.
8. Requires the courts to turn over GPS monitoring data to police and prosecutors during a criminal investigation to allow better tracking of pretrial defendants on electronic monitoring in an effort to prevent a charge defendant awaiting trial from committing another crime.
NEW MEXICO DISTRICT ATTORNEYS WANT LINE-ITEM VETO
New Mexico’s 14 district attorneys, though the District Attorneys Association, are urging Governor Michelle Lujan Grisham to veto part of House Bill 68 proclaiming that even before it becomes law, it is problematic for them.
Specifically, the District Attorneys object to the section of the legislation that requires the judiciary to share defendants’ GPS data with law enforcement officers when requested for a criminal investigation. The enacted House Bill 68 provides the GPS information must be shared without a warrant if there’s a “reasonable suspicion” to believe the data would provide relevant evidence. The GPS data section was a provision contained in Senate Bill 225 sponsored by Albuquerque Democrat Senator Gerald Ortiz y Pino.
The state’s prosecutors contend the proposal will narrow their access to the location data of defendants who wear an ankle monitor before trial. The District Attorneys and law enforcement argue “reasonable suspicion” makes it too difficult for them to obtain information about suspects’ recent whereabouts.
The “reasonable suspicion” language was added to HB 68 by state senators during the Senate Judiciary Committee hearing presided over by Las Cruces Democrat State Senator Joseph Cervantes who is a highly respected and experienced trial attorney.
The “reasonable suspicion” language was added after Senators questioned Albuquerque Police Department officials, including career prosecutor and former United Sates Attorney for New Mexico Damon Martinez, who is now APD’s chief policy adviser and city lobbyist and questioning court administrators.
A LETTER TO THE GOVERNOR AS DISTRICT ATTORNEYS REACT
5th Judicial District Attorney Dianna Luce , the president of New Mexico District Attorneys Association, wrote a letter to Governor Michelle Lujan Grisham, requesting that the “reasonable suspicion” language be “line item vetoed” from the bill. She wrote that the data section of the bill was written without prosecutors’ input. Luce ignored the fact that former United Sates Attorney for New Mexico Damon Martinez testified before the Senate Committee.
District Attorney Dianna Luce wrote the Governor:
“[Reasonable suspicion will delay] law enforcement’s ability to respond to a potentially life-threatening situation, such as a pretrial defendant being at a domestic violence victim’s home. … [The bill] will make the public less safe and give pretrial defendants greater opportunities to commit crime while on release.”
Luce, whose district covers southeastern New Mexico, said the data-sharing is all the more important given the Legislature’s rejection of proposals designed to keep more criminal defendants in jail while they await trial.
DISTRICT ATTORNEY TORREZ POUTS LIKE A CHILD NOT GETTING WHAT HE WANTED
Bernalillo County’s District Attorney Raul Torrez, who is now running for Attorney General, expressed no confidence with the passage of House Bill 68. According to Torrez one of the biggest disappointments was the failure to pass the pre-trial detention bill. Torrez pouted like a child after not getting what he wanted and had this to say:
“The [legislature failed] to address the problem of the revolving door, specifically with regard to some of the most violent and dangerous defendants that we’ve got. People accused of murder, sexual assault, child abuse. Individuals who have been armed with firearms. … I’m concerned that we will once again see individuals who we have sought to have detained who have been released who will then go on to commit very serious crimes.”
Torrez had this to say about the “reasonable suspicion” provision of the bill:
“The bottom line is the provision on GPS actually makes our jobs more difficult. It narrows the categories of defendants we can seek information on and it creates a privacy right for defendants who are considered to be in custody while they’re on GPS.”
SENATE JUDICIAL COMMITTEE CHAIRMAN REACTS
It was Senator Joseph Cervantes who was instrumental and the led efforts to assemble and then enact the final version of House Bill 68. Cervantes said the District Attorneys’ interpretation of the bill is simply not accurate. Senator Cervantes pointed out that without the bill, District Attorneys have had to sue to obtain GPS records for defendants they deemed violent.
The language of the bill makes it clear that a search warrant is not required. A warrant would require evidence of “probable cause” from an affiant. The “reasonable suspicion” standard was added, during committee hearings, to ensure officers have a reason for requesting the data.
Senator Cervantes put it this way:
“[Reasonable suspicion is] about the lowest standard there is to try and obtain. … All they really have to show is that it’s in connection with an ongoing investigation. … [The legislation passed] should make the information more available to law enforcement officers. …”
On February 19, Senator Joseph Cervantes responded on TWITTER to District Attorney Dianna Luce’s accusation that the data section of the bill was written without prosecutors’ input and said:
“For prosecutors to claim they had no input ignores my invitations for their written input and opportunities to speak during committee meetings. They did neither, and sat on their hands throughout. Crickets.”
APD Commander for Investigative Support Aaron Jones said the enacted legislation requires turning data over to law enforcement “as soon as it’s needed” and said:
“To be sure, we did not get everything we wanted … but it is a step in the right direction.”
Both APD Commander Jones and former United Sates Attorney Damon Martinez served as expert witnesses when the bill was presented. It was after they were questioned by Judiciary Committee Senators that the “reasonable suspicion” language was added to the crime bill.
REBUTABLE PRESUMPTION OF DANGEROUSNESS FOR PRE TRIAL DETENTION REVISITED
A major contributing factor for the 14 State District Attorneys to ask the Governor to veto the reasonable suspicion language in the crime bill is their dissatisfaction with the legislature’s rejection of the “pre trial detention legislation.” For that reason, a review of the the pretrial detention legislation is in oreder.
UNM STUDY OF “PRESUMPTION OF NO BAIL” CONSTITUTIONAL AMENDMENT
It was in July, 2019 that The University of New Mexico Institute for Social Research studied and reviewed the proposal by District Attorney Raul Torrez to change by constitutional amendment the way pretrial detention is handled in New Mexico. The final report was prepared by Paul Guerin the director of UNM’s Center for Applied Research and Analysis. The study called into serious question the effectiveness and outcomes to change the way pretrial detention is handled in New Mexico thereby discrediting the arguments made by District Attorney Raul Torrez.
The UNM study found no evidence that Torrez’s proposal would improve public safety. Based on a review of cases in which a defendant was released despite the DA’s requesting detention, Guerin found that preventive detention motions filed by the District Attorney’s office did not have “substantively” improved public safety as opposed to those cases in which no detention motions were filed.
Guerin’s study report recommends that the rebuttable presumption proposal be scaled way back by saying:
“If rebuttable presumption use is limited to cases in which defendants are charged with offenses punishable by life imprisonment, and other pretrial detention decisions are left to judges’ discretion and informed by risk assessment tools like the PSA, they can ensure reputation protection [for the criminal justice system] and align with national standards without undermining public safety. ”
Guerin cited research showing that a defendant’s current charge alone does not predict involvement in future dangerous crimes. He reported that some of the offenses or statutes the DA lists in his pretrial detention proposal “are arguably questionable indicators of dangerousness.” It was noted that many of the factors are already taken into consideration by the Arnold Venture’s Public Safety Assessment, a tool judges use when deciding to detain someone.
The UNM study looked at more than 7,000 cases filed from July 2017 to August 2018 as part of the review. There were 1,500 cases that had preventive detention motions filed by the District Attorney’s Office. Of those preventive detention motions, 46% were granted and 54% were denied.
The review found no substantial differences in failure to appear and in new criminal activity rates between defendants for whom the DA did not request detention and those who were released despite the DA’s requesting detention. In all, the study found that 17% of those denied cases picked up a new charge. Only 2.9% more of those defendants in denied motions failed to appear in court, and only 2% more picked up new charges.
The UNM Institute for Social Research Study reported that the rebuttable presumptions of detention being proposed could actually jeopardize public safety in two ways:
First, limited detention resources are used on those who could be released or supervised while more dangerous defendants are released.
Second, the report found that studies show unnecessary detention can lead to higher recidivism rates if defendants lose their jobs or their homes, or suffer other disruptions because of their detentions.
LEGISLATIVE FINANCE COMMITTEE REVIEWS “REBUTTABLE PRESUMPTION OF DANGEROUSNESS”
In preparation of the 2022 legislative session, he highly influential (LFC) released a 14-page memo analysis of the proposed “rebuttable presumption of violence” system and pretrial detention. 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 said that while crime rates have increased, arrests and convictions have not. The LFC went on to say the promise of “swift and certain” justice has a more significant impact on crime rates that rebuttable presumption does not.
A major result of the Legislative Finance Committee report was that legislators rejected all “pretrial detention” legislation which would have created a “rebuttable presumption of dangerousness” for defendants charged with certain violent crimes to be held in jail pending trial . Rebuttable presumption shifted the burden of proof from state prosecutors, who must prove a case “beyond a reasonable doubt” to convict, to the defendant who would have to show they are not a danger to the public in order to be allowed to be released pending trial. The “rebuttable presumption of being violent” legislation was substituted with legislation and then incorporated in House Bill 68 and that focuses on ankle-monitoring data of defendants released from custody as they await trial.
NO LINE-ITEM VETO AUTHORITY ON LEGISLATION WITH NO APPROPRIATIONS
The New Mexico State Constitution grants line-item veto power to the governor for “any bill appropriating money.” It is designed to enable a Governor to specifically reject funding appropriated for projects or programs.
The problem with House Bill 68 as enacted is that it contains no appropriation of funding. The “reasonable suspicion” language also has nothing to do with funding. Senator Joseph Cervantes himself has said that it is clear that House Bill 68 cannot be line-item vetoed because it doesn’t have an appropriation. Consequently, the only option Governor Lujan Grisham likely has is signing House Bill 68 into law in its entirety or vetoing it in its entirety.
Governor Spokesperson Nora Meyers Sackett had this to say:
“[The Lujan Grisham administration] will thoroughly review passed legislation and evaluate any input from stakeholders before taking action.”
The links to quoted news source material are here:
COMMENTARY AND ANALYSIS
The reaction of the District Attorneys throughout the state to the “reasonable suspicion” language contained in the enacted legislation, especially that of District Attorney Raul Torrez, can only be characterized as pathetic, perhaps even “pouting” like children over not getting what they wanted in the first place. Instead of giving any effort to try and make it work, they simply want the Governor to veto it. In a real sense, their lobbying effort is an acknowledgement that they do not know how to do their jobs. They are upset with the legislature’s refusal to enact their coveted “rebuttable presumption of violence” legislation that shifted the burden of proof to defendants.
Prosecutors like Torrez are always looking for ways to blame their failures on the courts and finding ways to allow them to ignore constitutional rights that will make their job the easiest without having to go to court. This coming from supposedly trial attorneys whose primary job is to go to court. It’s obvious that the District Attorneys want to be able to conduct “fishing expeditions” on the whereabouts of any and all defendants on ankle bracelets and on any and all types of cases not just those charged with violent crimes. They do not want any court involvement as is required with “reasonable suspicion” language in the bill.
DA Torrez’s argument that the legislation “creates a privacy right for defendants” is about as bogus as it gets. The truth is that as written, no “privacy rights” are being created. What is being created is a system where prosecutors and law enforcement must give very bare minimum reasons why they want the information in the first place.
PATHETIC ACKOWLEDMENT DO NOT WANT TO GO TO COURT
It is embarrassing and downright pathetic that the New Mexico District Attorney’s want the Governor to line-item veto the “reasonable presumption provision” of HB 68. “Reasonable suspicion” is without question the lowest burden a proof there is especially in the criminal law. Unlike “probable cause”, which is evidence that makes it more likely than not that a crime has been committed and required in search and arrest warrants, “reasonable suspicion” can be established with hearsay, even hearsay on hearsay, opinions and speculation.
District Attorneys like Torrez could not care less that the line-item veto request could easily place in jeopardy the entire HB 68 in that Governor just may decide to veto the entire bill. If the Governor does indeed line-item veto the provisions of the legislation the District Attorneys object to, it would likely wind up in court for the New Mexico Supreme Court to decide. In the past, law makers have been very successful in challenging line-item vetoes of past Governor’s. Given the fact that the “reasonable suspicion” language involves the courts, it’s likely the Courts will want the lower courts to have some degree of review and set aside the line-item veto.
The failure of the pretrial detention legislation no doubt was disappointing, but enactment of House Bill 68 was a far more realistic approach and will likely have a bigger impact on improving the criminal justice system and reducing crime.
Governor Lujan Grisham would be wise to just to ignore the whining and complaining of the District Attorneys, especially that of Raul Torrez, sign the legislation and get on with her efforts to get elected to a second term.