Governor Michelle Lujan Grisham for a second time is advocating major changes to the state’s criminal justice pretrial detention system in the form of enacting “rebuttable presumption” to make it easier to hold defendants accused of violent crimes until trial. The legislation would create a “rebuttable presumption” of dangerousness for defendants charged with violent crimes and that they be held without bond pending trial.
The aim of “rebuttable presumption” is to make it easier for more defendants to be held in custody before they’ve been convicted and to keep them from committing new crimes. Proponents of rebuttable presumption say it will reduce violent crime. Opponents of rebuttable presumption say courts can already keep a defendant behind bars and that reputable presumption shifts the burden of proof to defendants and violates the basic constitutional right of presumption of innocence until proven guilty.
District Attorneys throughout the state have argued the changes to the bail bond laws, as well as rules imposed by the New Mexico Supreme Court, make 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”.
Over the last 6 years, prosecutors, law enforcement and elected officials have repeatedly slammed judges and the court system for letting out until trial those accused of violent felonies, particularly when they re-offend. 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.
LAWMAKERS BLOCK REBUTTABLE PRESUMPTION
On February 15 the New Mexico Senate Health and Public Affairs Committee voted narrowly on a 4-3 vote to table Senate Bill 123 the rebuttable presumption bill sponsored by State Senator Linda Lopez. The bill would have directed judges to presume that defendants charged with certain crimes, such as first-degree murder and felony child abuse, are too dangerous to release before trial, subject to rebuttal by defense attorneys thereby shifting the burden of proof to the defense. Senate Bill 123 outlined serious violent felony offenses charges that would trigger a “rebuttable presumption against release” of the defendant. Under the bill, a judge could still order the person released if the defense offered arguments that outweighed the presumption. Legislative analysts estimated the bill could cost the state about $15 million a year in additional detention costs.
Committee Republican lawmaker members supported the measure while Democrats members were split. Voting in favor of tabling Senate Bill 123, thereby killing the measure, were Democratic Sens. Gerald Ortiz y Pino of Albuquerque, Brenda McKenna of Corrales, Bill Tallman of Albuquerque and Sedillo Lopez of Albquerquerqu. Voting to oppose tabling the bill were Republican Sens. Gregg Schmedes of Tijeras and David Gallegos of Eunice, in addition to Democrat Senator Moe Maestas, a former state prosecutor.
The committee’s vote to table the bill keeps it from advancing further and is likely a fatal blow. However, the committee could vote to reconsider, which is not likely, or it could be resurrected in separate legislation which is in fact pending.
OPPOSITION TO REUBTABLE PRESUMPTION
During the Senate Committee hearing, opponents of Senate Bill 123 said the bill would violate the rights of people accused, but not convicted, of a crime. It was argued that serious violent crime charges alone are not a good predictor of whether a defendant will commit a new crime upon release.
Opponents of Senate Bill 123 included the American Civil Liberties Union of New Mexico and the Law offices of the New Mexico Public Defender office. Kim Chavez Cook of the Law Offices of the Public Defender outlined a series of recent state Supreme Court decisions that she said suggest the “rebuttable presumption” approach based solely on a person’s charges wouldn’t survive a legal challenge. Cook said this:
“We need to find a solution that does not violate our state Constitution.”
Albuquerque area Democrat State Senator Antoinette Sedillo Lopez, a retired UNM law professor, for her part said this:
“There’s nothing that shows this statute is actually going to make us safer than what’s happening now. … I believe our system is worse if we convict innocent people and we hold innocent people [pending trial].”
SUPPORT FOR REUBTABLE PRESUMPTION
Albuquerque Democrat State Senator Linda Lopez, a co-sponsored of the bill, told the committee about the terror she and her family suffered when her own home was shot at in a politically motivated attack.
Albuquerque area Democrat Sen. Antonio “Moe” Maestas, who has worked as a prosecutor, said it’s clear New Mexico needs more aggressive monitoring of defendants who are released before trial. Maestas suggested judges in the Albuquerque area have sometimes set the bar too high by rejecting detention motions filed by prosecutors. Maestas also argued the bill would intrude into the domain of the judiciary. Notwithstanding his reservations, Maestas voted NOT to table the legislation.
DA SAM BREGMAN SUPPORTS WHAT GOVERNOR WANTS
Democrat Bernalillo County District Attorney Sam Bregman, who was appointed on January 3 to his job by Governor Michelle Lujan Grisham testified before the committee alongside of State Senator Linda Lopez, the sponsor of the legislation, in favor of the reputable presumption bill. Bregman told committee members:
“[New Mexico’s] pretrial system is broken … plain and simple. … I’m not blaming anybody. I’m asking for help.”
This coming from former high-profile defense attorney Sam Bregman who for decades made a lucrative living defending defendants who were released pending trial, including one former APD police SWAT officer who was charged with killing homeless camper James Boyd. As a criminal defense attorney, Bregman never said New Mexico’s pretrial system is broken. He is known for taking advantage of it whenever he could as a defense attorney to help his clients stay out of jail pending their trial. Now that he is responsible in part for making the criminal justice system work, he changes his tune.
Bregman was confronted by Democrat State Senator Joseph Cervantes, the Chairman of the Senate Judiciary Committee and a highly respected trial attorney, who in no uncertain terms asked Bregman point blank why Bregman was supporting a rebuttable presumption measure that Bregman knows is unconstitutional. Bregman made history for being at a loss for words and gave no credible answer. It is unknown what promises DA Bregman made to Governor Michelle Lujan Grisham to secure his appointment as Bernalillo County District Attorney. It is more likely than not Bregman agreed to support “rebuttable presumption” despite whatever reservations he had as a private defense attorney given that the Governor has made passage of it a priority.
Another promise Bregman likely made to the Governor was to serve only 2 years as Bernalillo County District Attorney and not run for reelection. Two years is no way long enough to correct the deficiencies in the Bernalillo County District Attorneys office, no matter how great or bombastic Bregman is as an attorney in a courtroom. At least Governor appointed Bernalillo County District Attorney Sam Bregman is not pointing fingers at the courts as being the cause of our high crime rates which is something his predecessor Raúl Torrez did for the 6 years to embellish his reputation so he could run for Attorney General.
It’s DA Office conviction rates that really matters when it comes to reducing crime. District Attorney Sam Bregman would be wise to concentrate on fixing his own broken office that is now his for 2 years after being appointed by the Governor. The Bernalillo County District Attorneys’ Office has a 65% combined dismissal, acquittal and mistrial rate with cases charged by grand juries. A report prepared by the Second Judicial District for the New Mexico Supreme Court 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.
As of November 21,2022, according to the New Mexico State Government Sunshine Portal, the Bernalillo County District Attorney’s Office has a $30,350,800 million operating budget with an adjusted operating budget of $36,680,800 which includes all sources of financing including federal grants. The office is budgeted for 337 full time positions. The office is fully budgeted for 102 attorneys who are “at will” and 255 other “classified” employees consisting of paralegals, administrative assistants, victim advocates, investigators, IT managers and personnel and finance division personnel who can only be terminated for cause under the state personnel rules and regulations. 276 of the positions are “active” meaning filled. The office has an alarming 61 vacancies, which includes attorney vacancies. The number of vacancies in the office is larger than most other District Attorney’s offices in the state.
Bregman said he has hired 13 additional attorneys since he took office 7 weeks ago which is a good start bringing to 85 the number of prosecutors in the DA’s office which means he still has 17 attorney vacancies. (102 fully funded positions – 85 filled positions filled = 17 vacancies). Bregman said he plans to hire an additional 40 prosecutors this year, but that is easier said then done given the high turn over rate of the office and the need for a substantial increase of the DA budget by the 2023 legislature.
What is also a positive sign is that there has been a major uptick in the scheduling of criminal trials in 2023 by the Second Judicial District Court. But for how long the uptick in jury trials will continue remains to be seen. District Court Judge Brett Loveless, who oversees the 2nd Judicial District Court’s criminal division had this to say:
“I do think that there will be an uptick in trials. Whether it will be as substantial as nine a week, on average, remains to be seen. And if it is, I think it will be short-lived.”
Links to quoted news source material are here:
OTHER LEGISLATION PENDING
There are two other pretrial-detention measures still pending. One is House Joint Resolution 9 calling for a constitutional amendment to make more defendants eligible for pretrial detention. It’s sponsored by Republicans Reps. Andrea Reeb of Clovis, Bill Rehm of Albuquerque and Stefani Lord of Sandia Park. Joint Resolution 9 has cleared one House committee and is awaiting action in another. If approved by lawmakers, it would go to voters.
The second proposal is Senate Bill 174 sponsored by Republican Senator Gregg Schmedes of Tijeras. Senate Bill 174 is very similar to Senate Bill 123 tabled by the committee. It centers on pretrial defendants charged with new crimes. If enacted, it would require and direct judges to presume that a defendant who is charged with first-degree murder while out on pretrial release is too dangerous to release again subject to rebuttal by defense attorneys. There is also a provision in the bill dealing with defendants who pick up other new charges. Senate Bill 174 cleared one Senate committee and is awaiting action in another.
The link to quoted and relied upon news source material is here:
COMMENTARY AND ANALYSIS
Many legislators remain very skeptical of rebuttable presumption. Las Cruces area Democrat Senator Joseph, a highly respected and seasoned trial attorney in his own right and the Chairman of the influential Senate Judiciary Committee, said he believes the current system is largely working as intended under a 2016 bail reform constitutional amendment. Cervantes described a rebuttable presumption as a “unconstitutional shortcut.” Cervantes in the past has said not all of New Mexico is beset by crime. He cited Sunland Park as one of the state’s safest communities and said this:
“We operate under the same laws as the rest of the state, and we have entirely different outcomes.”
LEGISLATIVE FINANCE COMMITTEE DISCREDITS REBUTABLE PRESUMPTION
It was last year on January 20, 2022 the powerful Legislative Finance Committee released a 14-page memo analysis of the proposed “rebuttable presumption of violence” legislation for 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 said 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 states in pertinent part:
“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.
“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.
The Governor’s and Legislator’s continued support of Rebuttable Presumption for pretrial detention is a real waste time. They need to turn their attention elsewhere where it will do some good and that would be enhancement of the sentences of violent criminal in cases where they have actually been convicted and not merely holding pending their trial.
The following enhance sentencing provisions should be considered by the New Mexico legislature:
Making possession of a handgun by someone who commits a crime an aggravated third-degree felony mandating a 6-year minimum mandatory sentence.
Increase the firearm enhancement penalties for the conviction of the sale and distribution of illicit drugs and for the brandishing a firearm in the commission of a felony from 3 years to 10 years for a first offense and for a second or subsequent felony in which a firearm is brandished 12 years.
Create a new category of enhanced sentencing for use of a lethal weapon or deadly weapon other than a firearm where there is brandishment of a deadly weapon in the commission of a felony with enhanced sentences of 5 years for a first offense and for second or subsequent felony in which a lethal weapon other than a firearm is brandished 8 years
Make it a third-degree felony for failure to secure a firearm mandating a 3-year sentence. Gun owners would have to keep their firearms in a locked container and make them inaccessible to anyone but the owner or authorized users.
Increase the penalty of shooting randomly into a crowded area a second-degree felony mandating a 9-year sentence.
Allow firearm offenses used in a drug crimes to be charged separately.
Change bail bond to statutorily empower judges with far more discretionary authority to hold and jail those pending trial who have prior violent crime reported incidents without shifting the burden of proof from the prosecution to the defense.
Cases of juveniles arrested in possession of a weapon are to be referred the District Attorney for automatic prosecution as an adult for sentencing.
Make it a 3rd degree felony if a person recklessly stores a firearm and a minor gains access to it to threaten or harms someone.
The message must be loud and clear to the violent criminal: You use a gun or weapon during the commission of your crime, especially fentanyl drug dealing, you go to prison with mandatory enhanced sentences for a very long time.