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.

https://www.krqe.com/news/politics-government/legislature/albuquerque-leaders-push-lawmakers-for-help-addressing-crime/

https://www.abqjournal.com/2465296/pretrial-detention-bill-advances-at-capitol.html

https://www.kob.com/albuquerque-news/albuquerque-mayor-pleads-with-lawmakers-to-help-with-crime/6373043/?cat=500

https://www.abqjournal.com/2465296/pretrial-detention-bill-advances-at-capitol.html

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.

NEWS UPDATE

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.

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:

https://nmpoliticalreport.com/2022/01/29/senate-judiciary-committee-hears-crime-presentation/?mc_cid=59f9b573cd&mc_eid=d03b0979c3

On January 24, the Hydrogen Hub Development Act, House Bill 4 was introduced for consideration by the 2022 New Mexico legislature. HB 4 is sponsored by Gallup Democrat Representative Patricia Lundstrom Las Cruces and Democrat Representative Nathan Small sponsoring the bill. Lundstrom is the chairperson of the powerful Legislative Finance Committee (LFC) and House Bill 4. The bill is supported by Governor Michelle Lujan Grisham who has made passage of the bill a major priority in the 30-day short session where she controls the agenda.

House Bill 4 (HB 4) would create a legal framework for hydrogen energy development in the state. Lujan Grisham Administration government officials and the oil and gas industry contend that the development of the state’s hydrogen can provide a tool for the transition to a clean energy economy. They argue that hydrogen has many potential applications as a relatively clean-burning fuel that doesn’t emit carbon dioxide.

The $1.2 trillion federal infrastructure bill, approved by the U.S. Congress and signed into law last year by President Joe Biden, includes $8 billion to build four initial “hydrogen hubs” around the country. It also includes $1 billion in federal assistance for hydrogen-technology research and development.

Governor Lujan Grisham added HB 4 to agenda call for the 30 day short session and promoted the bill as a way to significantly boost efforts to lower carbon emissions in New Mexico while at the same time creating a whole new industry that offers sustainable, high-paying jobs. Supporters argued that the new industry would help northwestern New Mexico where the transition from fossil fuels to renewable fuels is adversely impacting local communities.

A detailed Analysis and Commentary of the Hydrogen Hub Development Act can be found here:

“Hydrogen Hub Development Act Introduced; The Pros and Cons; “Consequences Of Getting It Wrong Are Too Dire”; Hold Special Session On Environmental Issues and HB4 Or Hold Over Until 2023”

https://www.petedinelli.com/2022/01/26/hydrogen-hub-development-act-introduced-the-pros-and-cons-consequences-of-getting-it-wrong-are-too-dire-hold-special-session-on-environmental-issues-and-hb4-or-hold-over-until/

TABLED IN COMMITEE

On January 27, a mere 6 days after introduction and at its very first committee hearing and after 6 hours of discussion and debate, the House Energy, Environment and Natural Resources Committee voted to table the measure 6 to 4. Both Democrats and Republicans voted in opposition to the measure.

The committee hearing attracting considerable interest with upwards of 300 public participants listening on line and dozens of supporters and opponents providing comments on the legislation. Before the committee hearing began in great earnest, Galisteo Democrat Representative Matthew McQueen, the chairman of the committee, conducted a 20-second online poll that showed 73% of respondents opposed the legislation.

Industry leaders, local officials and economic development professionals from rural counties that would benefit from hydrogen development testified in favor of the bill. However, 40 environmentalists and concerned citizens from around the state spoke out against it, citing widespread fear that promoting and accelerating hydrogen development with government incentives would hurt, rather than help, state efforts to combat climate change.

REACTION TO DEFEAT

After the 6-4 vote to table the bill, Las Cruces area Democrat Representative Nathan Small, one of sponsors of the bill, said he was disappointed. Notwithstanding his disappointment, Small expressed hope the HB 4 could still win approval during the legislative session and had this to say:

“I think we need to keep working this session to take in the input. … “I don’t think it’s acceptable to give up and say ‘next session’ or ‘next year.’”

Links to quoted news sources are here:

https://www.krqe.com/…/lawmakers-weigh-bill-that-would…/

https://www.abqjournal.com/2465102/hydrogen-bill-hits-roadblock-in-first-committee-hearing.html

COMMENTARY AND ANALYSIS

It is not at all realistic to think that House Bill 4 will be enacted during the 2020 legislative session. There is very little doubt that the Hydrogen Hub Development Act is one of the most complicated, scientific and technical pieces of legislation to be considered by the legislature in decades. After all, it involves our environment which is why it is generating such fierce debate.

Senate Majority Floor Leader Peter Wirth identified what the real problem is when he said before

“… It’s an extremely complicated question whether carbon sequestration technology is reliable. … We need careful, deliberative analysis to see where we go.”

With 20 days left in the 30 days session that is supposed to be concentrating on budgetary matters, there is simply is not enough time to give “careful, deliberative analysis” to a new industry that may have a detrimental impact on our environment. It is very foolish to believe that part time legislators will have enough time to have a thorough understanding of the Hydrogen Hub Development Act with so much more being considered and be able to make an informed decision.

When Speaker of the House Egolf said of the Hydrogen Hub Development Act “The consequences of getting it wrong are too dire”, the chamber which he leads needs to listen and act accordingly with a memorial calling for a study and deferring the legislation to a later session.

https://www.abqjournal.com/2464248/governor-begins-aggressive-push-on-hydrogen-bill.html

Time is also of the essence given the available funding and the environmental crisis of global warming. The Governor should call a special session dedicated exclusively to environmental issues, the Hydrogen Hub Development Act and New Mexico’s share of President Biden’s $1.2 trillion federal infrastructure bill and the $1 billion in federal assistance for hydrogen-technology research and development.

Otherwise, Hydrogen Hub Development Act should be held over to the 2023 legislative session.

On January 6, Governor Michelle Lujan Grisham and Secretary of State Maggie Toulouse Oliver announced their support for enactment of major changes in the state’s election laws by the 2022 New Mexico legislature. The link to the joint press release “Governor, Secretary of State announce plan to protect right to vote, expand ballot access” is here:

https://www.governor.state.nm.us/2022/01/06/governor-secretary-of-state-announce-plan-to-protect-right-to-vote-expand-ballot-access/

There were 8 major proposals supported by the Governor and the Secretary of State:

1. Giving 16 and 17 years right to vote in local elections, such as for city councils and school boards.

2. Straight-party ballot voting option allowing voters to choose the candidate in one party for every single race on the ballot.

3. Restoring voting rights to felons.

4. Sunday early voting and election day holiday.

5. Creating a permanent absentee voter list.

6. Allow registering on line with Social Security number.

7. Earlier mailing of absentee one week earlier or 35 days before Election Day.

8. Extending ballot acceptance by a full week.

In a statement making the announcement of changes to the state’s voting laws, Lujan Grisham had this to say:

“Protecting voting rights is essential to upholding our democracy and ensuring New Mexicans’ voices are heard.”

Secretary of State Maggie Toulouse Oliver for her part said:

“[This legislation] gives us the chance to pass one of the most powerful voting rights bills in our state’s history.”

SENATE BILL 6

Senate Bill 6 (SB6) is a 250-page bill updating New Mexico election procedure laws. The legislation is jointly sponsored by Albuquerque Democrat Senator Daniel Ivey-Soto and Elephant Butte Republican Senator Crystal Diamond. Passage of the bill is supported by Governor Lujan Grisham, Secretary of State Maggie Toulouse Oliver and county clerks throughout the state.

Some of SB6 provisions would make permanent temporary election provisions started during the pandemic. Those include an 11 p.m. halt to absentee-vote counting on election night, with work resuming the next morning.

There a 3 major exclusions in SB6 that had been originally announced being supported by the Governor and Secretary of State. Those are:

SB6 does strong>not authorize a straight-party voting option.
SB6 does not extend the mail-back deadline for absentee ballots. SB6 does not expand early voting by a day.

SB6 does call for a host of changes to New Mexico’s election laws, including allowing 16 and 17 year-olds to vote in local elections and establishing a permanent absentee voter list.

The major provisions of SB 6 can be summarized as follows:

Allowing 16 and 17 year-olds to vote in local and municipal elections.

Designating Election Day as a state holiday.

RULES FOR POLL CHALLENGERS AND PHOTO IDENTIFICATION

A bipartisan election proposal is also moving forward in the 2022 New Mexico Legislative Session that would establish new rules for poll challengers and same-day voter registration. Under the proposal, training would be required for poll watchers and challengers. It would also prohibit someone from serving as a watcher or challenger if they had previously been removed from the role by election officials for violating election rules.

On February 26, the measure resulted in a clash in the Senate Rules Committee over whether a student identification (ID)card should be acceptable as identification when someone registers to vote on election day. State law now requires a photo ID for same-day voter registration. The proposal, would clarify that a driver’s license or other government-issued ID would be required, not simply a student ID.

Albuquerque area Republican Senator Mark Moores won approval for an amendment that would clarify that someone must show a government-issued identification, and not one from school or college, to register and vote on Election Day. The amendment was agreed to by bill sponsor Democrat State Senator Daniel Ivey-Soto.

Notwithstanding Ivey-Soto’s approval, Democrats objected to the provision and said they will try to amend the bill at a future hearing or revise the ID requirement in separate legislation. Some Democrats objected, contending younger voters may not have a driver’s license and that allowing student identifications would protect their right to vote.

Moores for his part accused Democrats of refusing to compromise with Republicans on a bill otherwise positioned to pick up bipartisan support and strengthen confidence in elections. Moores had this to say:

“If you guys don’t want to work with us, don’t even bring us to the table next time.”

Santa Fe Democrat and Senate Majority Leader Peter Wirth said the voter identification provision is a reasonable policy question and that Moores himself had proposed language adjusting the rule. Wirth said:

“There’s legitimate discussion about how to do this.”

The measure cleared the Senate Rules Committee and now will be heard by the Senate Finance Committee. If the bill gets a do pass recommendation in the Senate Finance Committee, it will move on to the full Senate for passage.

DEMOCRAT SUPPORT, REPUBLCAN OPPOSTION

Governor Lujan Grisham supports passage of SB6 and described it as “an important step toward expanding and protecting voting rights.”

Secretary of State Maggie Toulouse Oliver supports passage of SB6 and had this to say:

“Even as we’ve seen attempts around the country to make voting more difficult for eligible voters … here in New Mexico we continue to be a leader in how to balance the demands for voter access with the needs of maintaining our high levels of election security.”

The Democratic majority floor leaders in both chambers, Santa Fe Senator Peter Wirth of Santa Fe and Albuquerque Representative Javier Martínez of Albuquerque, support the measures.

Not at all surprising, many Republicans follow Republican national talking points and say the changes will lead to “fraud and confusion”. Republican Party Chairman Steve Pearce went so far as to say the changes will “damage the security and integrity of New Mexico elections.”

The links to quoted news source material is here:

https://www.abqjournal.com/2464376/democratic-leaders-introduce-nm-elections-bill.html

https://www.abqjournal.com/2464708/lawmakers-clash-over-student-id-for-voting.html

COMMENTARY AND ANALYSIS

Changes to New Mexico’s election laws always generate partisan heated debate and accusations of potential voter fraud. Among recent changes that were controversial occurred with the enactment of the 2019 law that allows New Mexicans to register to vote and cast a ballot on the same day.

GIVING 16 AND 17 YEAR OLDS THE RIGHT TO VOTE

Allowing residents as young as 16 to vote in local elections, such as for city councils and school boards. This makes very little sense. Simply put, the U.S. Constitution does not allow 16 or 17-year-olds to vote in federal elections. The Twenty-Sixth Amendment to the United States Constitution provides “The right of citizens of the United States, who are eighteen years of age or older, to vote shall not be denied or abridged by the United States or by any State on account of age.” The drive to lower the voting age from 21 to 18 grew across the country during the 1960s, driven in part by the military draft held during the Vietnam War. A common slogan of proponents of lowering the voting age at the time was “old enough to fight and die, old enough to vote”.

It is very difficult to understand the rational why now is the time to create a whole new class of voters by giving 16 and 17-years old’s the right to vote, even though it would be only for local elections, such as for city council and school boards. It is dubious to think that 16 and 17 year old’s have the maturity, let alone the understanding, of local municipal and school board issues other than perhaps trying to making their high school teachers and principals miserable.

RESTORING VOTING RIGHTS TO FELONS

Under the law, once a convicted felon has done their time or completed their court-imposed sentence including probation, they have paid their debt to society that should allow them to return and be productive citizen. Automatically restoring voting rights to felons who aren’t incarcerated and make it easier to register online to vote should be a no brainer. Notwithstanding, even if their voting rights are restored, the question is are convicted felons more likely have any interest in voting as is the lack of interest of many non felons.

DESIGNATING ELECTION DAY A HOLIDAY

As to the proposals to designate election day as a state holiday, this proposal is long overdue and should be adopted. Across the country, because of the big lie Trump has promoted that he lost the election and the lie of widespread fraud, red state legislatures are enacting laws to reduce access to the polls. New Mexico already requires employers to grant employees paid time off to vote and making election day a holiday is the logical next step.

CREATING A PERMANENT ABSENTEE VOTER LIST

Creating a permanent absentee voter list allowing people to receive ballots by mail without having to file new requests makes common sense and should be implemented in some form. Being able to cast a ballot should be made as simple as possible, not as hard as possible as Republicans want. Repeatedly requiring a person to make a request for an absentee ballot is an obstacle that should be eliminated.

REGISTERING ON LINE WITH SOCIAL SECUTITY NUMBER

This proposal does not make sense. Allowing people to register to vote online using their full Social Security number could create an environment of identity theft. Years ago, people’s social security numbers were placed on driver’s licenses and that practice had to be abandoned. A much better system to register to vote on line needs to be proposed.

SILLY CLASH OVER STUDENT IDENTIFICATION CARD

Republicans for decades have had a real hang up about mandating photo identification to be able to vote. The clash over whether a student identification card should be acceptable as identification when someone registers to vote on Election Day borders on the absurdity or is downright silly. Student identification cards issued by accredited universities and state higher education institutions are in fact just as reliable on many levels as state driver’s licenses, yet Senator Moores ostensibly believes universities or college are somehow bastions of election fraud and corruption.

WHAT GETS OLD

What gets old is when Republican Der Führer Trump Party Chairman Steve Pearce argues any changes to election laws made by Democrats that make it easier to register to vote and to vote “damage the security and integrity of New Mexico elections”. Der Chairman simply mouths off without offering a scintilla of evidence. The only damage to the security and integrity of our elections is when Republican big mouths like Pierce undermine the credibility of elections with his lies.

Nationally, legislatures controlled by Republicans in red states are making major changes to their election laws to give Republicans in charge of administering election counts the power to merely invalidate election results and votes and making it as difficult as possible to vote in order to suppress voter registrations and invalidate election outcomes.

Republicans on the national level have all bought into Der Führer Trump’s arguments that the 2020 election was rigged or stolen from him. The truth is that 2020 election was the most secured election in United State history.

Federal Courts at all levels, including Trump appointees, threw out court challenges and dismissed cases as quickly filed by Der Führer Trump supporters and finding a failure to offer any evidence of voter fraud. Upwards of 56 federal lawsuits challenging the 2020 Presidential elections, especially in battleground states that Trump lost, were dismissed as being frivolous with no evidence of fraud offered.

Unless Der Führer Trump Party Chairman Pearce can offer legitimate evidence of election fraud, or damage to the security and integrity of our elections he should do us all a favor and just shut up, especially when changes to our election law are bi partisan such as SB6.

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.

https://www.kob.com/albuquerque-news/bill-expected-to-change-new-mexicos-pretrial-release-conditions-stalls/6370765/?cat=500

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:

https://www.kob.com/albuquerque-news/bill-expected-to-change-new-mexicos-pretrial-release-conditions-stalls/6370765/?cat=500

https://www.krqe.com/news/politics-government/legislature/pretrial-detention-proposal-faces-intense-scrutiny/

https://www.abqjournal.com/2464688/pretrial-detention-bills-struggling-for-traction-at-the-roundhouse.html

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:

https://www.kob.com/albuquerque-news/bill-expected-to-change-new-mexicos-pretrial-release-conditions-stalls/6370765/?cat=500

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.”
______________________

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.”

On Monday, January 24, the Hydrogen Hub Development Act was introduced for consideration by the 2022 New Mexico legislature. It is House Bill 4 (HB 4) and it is sponsored by Gallup Democrat Representative Patricia Lundstrom and Las Cruces Democrat Representative Nathan Small. Lundstrom is the chairs the powerful Legislative Finance Committee (LFC). The bill is supported by Governor Michelle Lujan Grisham who has made passage of the bill a major priority in the 30-day short session where she controls the agenda.

House Bill 4 (HB 4) would create a legal framework for hydrogen energy development in the state. Lujan Grisham Administration government officials and the oil and gas industry contend that the development of the state’s hydrogen can provide a tool for the transition to a clean energy economy. They argue that hydrogen has many potential applications as a relatively clean-burning fuel that doesn’t emit carbon dioxide.

The $1.2 trillion federal infrastructure bill, approved by the U.S. Congress and signed into law last year by President Joe Biden, includes $8 billion to build four initial “hydrogen hubs” around the country. It also includes $1 billion in federal assistance for hydrogen-technology research and development.

CONCERNS ADDRESSED

State officials and legislators have been working on HB 4 for some time. The Lujan Grisham Administration and Senator Lundstrom originally developed two separate bills, but they eventually consolidated them into HB 4. The agreed to bill reflects significant changes based on public feedback.

Environmentalists sharply criticized the original governor’s bill for allowing hydrogen producers to emit up to 9 kilograms of carbon for every 1 kilogram of hydrogen produced when applying for tax credits even though its mandated a drop to just three-to-one over eight years.

Environment Department Secretary James Kenney said the consolidated HB4 overhauls tax incentive eligibility to encourage zero emissions, offering much higher tax breaks now for non-emission, “clean hydrogen,” and even bigger incentives for “carbon-negative” production.

TAX BREAKS AND INCENTIVES TO BUILD HUBS

HB 4 provides for new tax breaks and industry incentives designed to help the industry to develop hydrogen production and distribution facilities across New Mexico. The ultimate goal is to build a market for local and regional hydrogen consumption.

HB 4 will reward with loans and grants the creation of “hydrogen hubs” where public and private entities create partnerships. Those partnerships created will be required to build out “hydrogen infrastructure in designated zones” converting them into industrial parks where companies that consume or market hydrogen-based products and services can locate together.

Environment Department Secretary James Kenney said HB 4 as introduced overhauls tax incentive eligibility to encourage zero emissions, offering much higher tax breaks now for non-emission, “clean hydrogen,” and even bigger incentives for “carbon-negative” production. The bill provides significantly reduced tax breaks for “low-carbon” hydrogen, with the eligibility ratio now starting at only four-to-one.

The actual tax breaks under HB 4 vary and are based on carbon emissions and if the production facility is located inside a “hydrogen hub.”

Under HB 4, all income tax deductions are capped at 17 million kilograms of hydrogen per year. The lowest level of “qualified” hydrogen outside a “hydrogen hub” could receive up to “850,000 per year. The highest level of “carbon negative” production could receive up to $5.1 million a year.

Under HB4, “carbon negative” hydrogen production will receive 30 cents for every kilogram of hydrogen produced and 100% gross receipts tax and compensating tax deductions if located inside a “hydrogen hub” and 15 cents per kilogram outside a “hydrogen hub.”

“Clean”, which means no carbon emitting, hydrogen production will be eligible for 30 cents per kilogram and 66% deductions inside a “hydrogen hub” and 10 cents per kilogram outside a “hydrogen hub.”

“Qualified” hydrogen production, which is a maximum of 4 kilograms of carbon for every 1 kilogram of hydrogen produced, can receive 10 cents per kilogram and 33 cents deductions inside a “hydrogen hub” and 5 cents outside a “hydrogen hub.”

WHAT ADVOCATES ARE SAYING

Advocates, including the Governor, are say building a local hydrogen economy is critical to accelerate efforts to lower or eliminate carbon emissions because hydrogen is a relatively clean-burning fuel that doesn’t emit carbon dioxide. Advocates argue hydrogen can help decarbonize transportation when electric batteries are not viable options, such as long-haul trucking, trains and planes for freight. Proponents also argue that hydrogen development could be used to produce electricity, replacing fossil fuels like coal or natural gas to run turbine generators in power plants.

In her January 18 State of the State Address, Governor Lujan Grisham expressed her support for the development of the hydrogen industry and said:

“…clean hydrogen will support thousands of jobs, especially in rural New Mexico, while helping us sprint toward our net-zero carbon deadlines and decarbonize the transportation sector.”

On January 25, Lujan Grisham said in a statement:

“This is New Mexico’s chance to reap the vast economic and environmental benefits of clean hydrogen, and I urge legislators to think boldly and support [HB4].”

Lundstrom for her part said in a statement:

“This bill creates and protects good, family-supporting jobs for New Mexicans, while reducing emissions and addressing climate change. … the economy in New Mexico is based on energy. I think new Mexico should be the lead on this thing. We should be close to it and we should be leading the pathway. … ”

HB 4 creates a “hard cap” on carbon emissions for hydrogen production that is used to run electric generating facilities, imposing a maximum of 375 pounds of carbon for each megawatt hour of electricity produced. The cap will reduce emissions in hydrogen-based electric generation by at least 50% compared to a new natural gas plant.

Environment Department Secretary James Kenney said HB 4 could make the state’s goal of 45% lower carbon emissions by 2030 and carbon neutrality by 2050 much more achievable. Kenny said:

“This will help us get there. … We hope the Legislature will take the big, bold, brave step needed to approve it.”

WHAT THE OPPOSITION IS SAYING

The hydrogen development plan has major critics. New Mexico environmental groups are highly critical of the Governor over the issue. At issue is hydrogen’s actual ability to lower carbon emissions in the hydrogen-production process and the potential danger of applying hydrogen solutions to decarbonize energy use in areas better served by renewable resources. Upwards of 30 environmental organizations are calling upon the Lujan Grisham Administration to initiate a study of the pros and cons before considering any new hydrogen legislation.

Environmentalists argue that large-scale hydrogen production would do little to lower carbon emissions, perhaps make them worse, because hydrogen is made with natural gas that has a huge amount of carbon dioxide. Environmentalists sharply criticized the original governor’s bill for allowing hydrogen producers to emit up to 9 kilograms of carbon for every 1 kilogram of hydrogen produced when applying for tax credits, although it did mandate a steady drop to just three-to-one over eight years.

Environmentalists fear that methane released in mining and transporting natural gas to hydrogen plants will offset any potential benefits from capturing carbon released during hydrogen production. Environmentalist argue a lot more funding and staffing to monitor and enforce compliance is needed under the bill.

Tom Singer of the Western Environmental Law Center is critical of HB 4 that authorizes third-party verification firms to certify that natural gas used in hydrogen production is “responsibly sourced,” meaning suppliers have reduced upstream methane emissions to a minimum. Singer notes there is no clear definition in the bill what “responsibly sourced gas” means, nor how total carbon reductions will be measured throughout the full “life-cycle” of hydrogen production, from upstream operations to the end user.

Singer put it this way:

“That sounds a lot like a ‘third-party’ hen house being overseen by oil-and-gas-producing foxes who want to claim that their gas is clean.”

Western Environmental Law Center Executive Director Erik Schlenker-Goodrich also expressed concerns and said:

“Methane-based hydrogen production is a very risky investment bet with state resources or private-sector capital … hydrogen may be cost competitive in the short-term, but that could be reversed by 2030 compared with green hydrogen. We could invest billions in New Mexico in a scheme that could be outdated by other technologies in a decade.”

ENVIRONMENTALISTS PREFER “BLUE” VERSUS “GREEN” HYDROGEN

“Blue” hydrogen refers to a process that captures and sequesters carbon emissions released during production. That’s considered to be a step above “gray” hydrogen production, which uses the same process but simply vents those emissions into the atmosphere with no effort to capture and sequester them.

Environmentalists fear the emerging focus on hydrogen could derail the accelerated adoption of renewable energy generation now underway nationwide as policymakers and investors pursue massive hydrogen development rather than pushing full speed ahead on solar, wind and battery-storage technology.”

DEMOCRATIC LEADERSHIP EXPRESS RESERVATIONS

State Senate majority leader Peter Wirth said he is concerned about relying on “carbon capture and sequestration technology”, known as CCS, when producing hydrogen. The industry has said CCS will trap carbon that is then released when pulling hydrogen out of the methane contained in natural gas. The problem is the extraction technology has yet to be proven efficient and economically viable in commercial projects.

Wirth had this to say:

“I have real reservations … It’s an extremely complicated question whether carbon sequestration technology is reliable. … We don’t want the discussion of hydrogen to take us away from [solar, wind and other renewable generation.] … We need careful, deliberative analysis to see where we go.”

Speaker of the House Brian Egolf had this to say about HB4:

“It may not get done in this session. … We don’t want to rush a decision. The consequences of getting it wrong are too dire.”

Links to quoted news source materials are here:

https://www.abqjournal.com/2464248/governor-begins-aggressive-push-on-hydrogen-bill.html

“New Mexico Legislative Guide”, page 14 and 15:

https://abqjournal-nm.newsmemory.com/?special=Special+Section&selDate=20220115

“Ready or not its legislative time”

https://www.abqjournal.com/2461690/ready-or-not-its-legislative-session-time.html

https://www.krqe.com/news/politics-government/legislature/lawmakers-weigh-bill-that-would-get-state-involved-in-hydrogen-hubs/

COMMENTARY AND ANALYSIS

In even number years, the legislature convenes for 30 days, known as a “short session”. The 30-day sessions are dedicated to budget legislation and the agenda is set by the “Governor’s Call”, meaning the Governor dictates was legislation can be considered. In odd number years, the legislature convenes for 60 day sessions and legislators can introduce legislation on any topic or matter they choose and not subject to the Governor’s call.

There is very little doubt that the Hydrogen Hub Development Act is one of the most complicated, scientific and technical pieces of legislation to be considered by the legislature in decades. After all, it involves our environment which is why it is generating such fierce debate.

Senate Majority Floor Leader Peter Wirth identifies what the real problem is when he says “… It’s an extremely complicated question whether carbon sequestration technology is reliable. … We need careful, deliberative analysis to see where we go.”

With 21 days left in the 30 days session that is supposed to be concentrating on budgetary matters, there is simply is not enough time to give “careful, deliberative analysis” to a new industry that may have a detrimental impact on our environment. It is very foolish to believe that part time legislators will have enough time to have a thorough understanding of the Hydrogen Hub Development Act with so much more being considered and be able to make an informed decision.

When Speaker of the House Egolf says of the Hydrogen Hub Development Act “The consequences of getting it wrong are too dire”, the chamber which he leads needs to listen and act accordingly with a memorial calling for a study and deferring the legislation to a later session.

Given the magnitude what is being proposed, there is no doubt that an extensive state-sponsored study of the pros and cons should be conducted before considering any new hydrogen legislation.

Time is also of the essence given the available funding and the environmental crisis of global warming. The Governor should order the withdrawal HB4 from her Governor’s Call of the 2022 legislative agenda and order the study to be a major priority over the next few months.

Further, the Governor should call a special session dedicated exclusively to environmental issues, the Hydrogen Hub Development Act and New Mexico’s share of President Bidens $1.2 trillion federal infrastructure bill and the $1 billion in federal assistance for hydrogen-technology research and development. Otherwise, Hydrogen Hub Development Act should be held over to the 2023 legislative session.

NEWS UPDATE

On January 27, it was reported that after 6 hours of discussion and debate, the House Energy, Environment and Natural Resources Committee voted to table the measure. In the shortened legislative session, it is unlikely the measure will be brought up again.

https://www.krqe.com/news/politics-government/legislature/lawmakers-weigh-bill-that-would-get-state-involved-in-hydrogen-hubs/

Currently, Social Security benefits are subject to federal taxation are also subject to New Mexico personal income tax. New Mexico is one of just 13 states that tax the benefit.

During the January 18 State of the State address, Governor Michelle Lujan Grisham for the very first time announced her support calling for Social Security retirement income to be exempted from taxation and she said this:

“New Mexico is one of only a few states that taxes social security. I am calling today for that taxation to end. We must unburden the New Mexicans who rely on social security benefits by cutting their taxes. This is good government, serving the people who have asked us to serve them. New Mexicans deserve it. Because I believe we have an obligation to find ways to make life easier for the people of New Mexico, and I will keep looking for ways to do exactly that.”

According to the latest census figures, New Mexico has a population of upwards of 2.1 million residents with approximately 450,000 people receiving Social Security benefits. A worker’s lifetime earnings largely determine the amount of Social Security benefits received.

HOUSE AND SENATE BILLS INTRODUCED

There are two House Bills and three Senate Bills that have been introduced for the 30-day legislative session that started on January 18 dealing with no taxation of federal Social Security retirement income.

HOUSE BILLS

House Bill 48 exempts Social Security income from state taxation.

House Bill 49 phases in tax exemption of Social Security benefits by 2026. HB 49 is sponsored by conservative Republican gubernatorial candidate Representatives Rebecca Dow of Truth of Consequences. Dow wants t phase out state taxes on Social Security income gradually between 2022 and 2026 which will likely be Governor Lujan Grisham’s second term with Rebecca Dow long forgotten as a Republican candidate for Governor.

SENATE BILLS

Senate Bill 49 which would exempt Social Security income from taxation with certain income limits and increases tobacco tax rates to offset revenue impact. This bill is sponsored by Democratic Senators Bill Tallman and Martin Hickey of Albuquerque would do away with some taxes on Social Security income, though not for higher-income households, defined as residents earning $72,000 or less and joint filers earning up to $124,000. State government income would be bolstered by changes to taxation of tobacco under the proposal.

Senate Bill 108 sponsored by Democrat State Senator Michael Padilla of Albuquerque and Senate Bill 121 sponsored by Republican Eunice Republican State Senator David Gallegos both simply exempt Social Security income from state taxation.

https://www.usnews.com/news/best-states/new-mexico/articles/2022-01-21/new-mexico-may-limit-or-scrap-tax-on-social-security-income#:~:text=In%20a%20state%20of%202.1,of%20Social%20Security%20benefits%20received.

GOVERNOR ANNOUNCES SUPPORT OF SENATE BILL 108

Democrat State Senator Michael Padilla of Albuquerque is the sponsor of Senate Bill 108. Republican David Gallegos of Eunice is the sponsor of Senate Bill 121 that would eliminate state income taxation on Social Security income.

On January 18 Governor Michelle Lujan Grisham announced in a press release the introduction of Senate Bill 108 and her support, the legislation sponsored by Albuquerque area State Sen. Michael Padilla. The Governor repeated her State of the State message and said:

“New Mexico is one of only a few states that taxes Social Security. Ending this tax lifts one more burden from the shoulders of New Mexico seniors living on fixed incomes.”

According to Governor’s spokesperson Nora Meyers Sackett Senate Bill 108 supported by the governor does not include a revenue offset, though it could be amended as it advances through the Legislature. Myers has this to say in a statement:

“Our focus as a starting point is exempting Social Security benefits from taxation, and with record state finances, this is the time to make that a reality for New Mexicans.”

SENATOR MICHAEL PADILLA REACTS

Albuquerque area Senator Michael Padilla had this to say about the bill he is sponsoring:

“Social Security is a sacred promise, and it’s time for us here in New Mexico to stop taxing Social Security benefits. … It takes, literally, food off the table of retired New Mexicans. It makes the state look unattractive from a retirement standpoint.”

“We have never had a better opportunity to eliminate income taxes on social security than we do right now. … This is the perfect year to do it because of the revenue-generating capacity we have right now. … Record revenues make it possible to help hundreds of thousands of retired New Mexicans enjoy greater financial peace of mind. … “

The links to quoted news sources are here:

https://www.governor.state.nm.us/2022/01/20/governor-asks-legislature-to-end-tax-on-social-security-benefits/

https://www.santafenewmexican.com/news/local_news/effort-to-end-social-security-income-tax-gains-traction/article_2c9fd122-7a46-11ec-b965-fb1f9ba99abb.html

Padilla, a third-term Albuquerque South Valley Democrat, predicted much of the extra income retirees would have if the legislation is enacted would go right back back into New Mexico’s economy. Padilla said he feels confident lawmakers will end up approving the measure during this year’s session.

Senator Padilla argued that eliminating the tax on Social Security benefits would ultimately help all New Mexicans and could make the state more attractive to retirees. Padilla said this:

“The bottom line is folks are living longer. … Their income has to be stretched not for five or 10 years but often for 30 years.”

BACKGROUND

It was in 1990 that the state’s personal income tax was applied to federal Social Security benefits. Proposals to exempt Social Security income from taxation have failed repeatedly due to concerns that such a change would cost upwards of $83 million a year.

“Think New Mexico” is a Santa Fe-based think tank and has reported that New Mexico is only 1 of 13 states that tax Social Security benefits. Think New Mexico has advocated for the tax to be fully or partially repealed. According to Think New Mexico, fully eliminating the tax on Social Security would save $700 a year for the average senior on Social Security.

According to the 2020 U.S. Census, New Mexicans age 65 or older make up 18% of the state’s population. This is up from 13.2% in 2010 census and 11.7% in 2000. New Mexico’s population is living longer and getting older while its the states younger and educated population in the 30’s and 40’s are leaving the state in droves because of lack of high paying jobs.

New Mexico’s personal income tax is levied on income above $24,800 annually for a married couple filing jointly. Eliminating Social Security taxation will ultimately benefit high-income retirees the most.

OTHER BILLS EXPLAINED

There are what many would say are very minor differences with the 5 bills removing the tax on Social Security retirement income. It is the sponsorship that is the biggest difference in an election year.

Senate Bill 49 is sponsored by Albuquerque far north east heights Democrat Senator Bill Tallman with his district leaning conservative Republican. Tallman’s Senate District has a high number of retirees and his support of not taxing social security will be well received by his constituents. Tallman himself is a retired Santa Fe city government official. Tallman’s bill would increase the state’s tax rate on tobacco products to offset the revenue impact to the state caused by exempting such retirement benefits from taxation.

Other measures, including Padilla’s, call for a straightforward exemption regardless of income level, though at least one proposal would gradually implement the change over a 4-year period and would be fully implemented by 2026.

What is surprising not taxing Social Security benefits is universally supported by all Republican lawmakers. Historically, Social Security is vilified by Republicans.

On January 20, State Senate Republican leadership announced their support of Senate Bill 121 sponsored by Eunice Republican State Senator David Gallegos. Senate Bill 121 is very similar if not identical to Padilla’s Senate Bill 108. Senator Gallegos had this to say:

“There has never been a more important time to give our seniors some tax relief, especially those who are caregivers and those on a limited, fixed income.”
Links to quoted news sources are here:

https://www.santafenewmexican.com/news/local_news/effort-to-end-social-security-income-tax-gains-traction/article_2c9fd122-7a46-11ec-b965-fb1f9ba99abb.html

THE DEPLETION OF SOCIAL SECURITY

Nationally, 65 million Americans receive Social Security.

“Social Security is funded by a 6.2 percent payroll tax paid both by employees and employers. This payroll tax goes into the Social Security trust fund. According to the trustees’ latest projections, the trust fund ensures that Social Security beneficiaries can count on all of their promised benefits until 2035, giving Congress enough time to address Social Security’s longer-term financial shortfall. Currently, 65 million people receive Social Security benefits, including retirees, people with disabilities, widows and widowers, and surviving spouses and children of workers. Most seniors and disabled worker beneficiaries rely on Social Security for a majority of their income. As the pandemic continues to exact a toll on Americans’ health and financial security, Social Security’s guaranteed income is all the more important.”

https://www.usnews.com/news/best-states/new-mexico/articles/2022-01-21/new-mexico-may-limit-or-scrap-tax-on-social-security-income#:~:text=In%20a%20state%20of%202.1,of%20Social%20Security%20benefits%20received.

https://www.americanprogress.org/article/trumps-plan-defund-social-security/

“According to the 2021 annual report of the Social Security Board of Trustees, the surplus in the trust funds that disburse retirement, disability and other Social Security benefits will be depleted by 2034. That’s one year earlier than the trustees projected in their 2020 report. That does not mean Social Security will no longer be around. It does mean the system will exhaust its cash reserves and will be able to pay out only what it takes in year-to-year in Social Security taxes. If this comes to pass, Social Security would be able to pay about 78% of the benefits to which retired and disabled workers are entitled.”

https://www.aarp.org/retirement/social-security/questions-answers/how-much-longer-will-social-security-be-around/

HISTORICAL REPUBLICAN OPPOSITION TO SOCIAL SECURITY

Social Security is without a doubt the largest and most popular entitlement program in the United States. Historically, the Republican Party has always been associated with opposition to Social Security.

On August 14, 1935, when Social Security was created by an Act of Congress and later signed into law by President Franklin Roosevelt, the final congressional vote for Social Security was very lopsided. Only 2% of Democrats voted against Social Security while 33% of Republicans voted against.

At the time of its enactment, Republicans argued it would undermine America by “destroying initiative, discouraging thrift, and stifling individual responsibility.” In 1935, Republican congressman John Taber said Social Security “is designed to prevent business recovery, to enslave workers, and to prevent any possibility of the employers providing work for the people.”

https://www.forbes.com/sites/teresaghilarducci/2018/11/02/republican-public-opposition-to-social-security-and-medicare/?sh=29480cc84e71

Over many decades, Republicans have always vilified Social Security. The most notable was President Ronald Reagan. In a 1964 speech, Reagan explained that his opposition to Social Security and Medicare is why he switched from the Democratic Party to the Republican Party. Reagan called Social Security “welfare” and said of the possible regret in not stopping the passage of Medicare:

“One of these days you and I are going to spend our sunset years telling our children and our children’s children what it once was like in America when men were free.”

In 2005, Republican President George W. Bush tried to replace Social Security with private retirement investment accounts but the privatization plan failed miserably. Not a single Democrat in Congress would agree to it.

When Vice President Mike Pence was in Congress, he opposed passage of Medicare’s Part D, the drug benefit. He complained that Bush’s proposal to partially privatize Social Security was not enough. Pence wanted much deeper cuts to Social Security than President Bush.

Fast forward to 2017 when Der Führer Trump was in office and when both the United States Senate and the House of Representative were controlled by Republicans. The Republican Congress ram rodded through the 2017 “Tax Cuts and Jobs Act” which relied heavily on cutting Social Security, Medicare and Medicaid to pay for the tax cuts that benefited corporations and the rich almost exclusively.

A U.S. Department of the Treasury report attributed the highest deficit in 6 years to the Republican 2017 “Tax Cuts and Jobs Act.” Simply put, spending more than revenue causes a deficit. Social Security is required by law to pay benefits only from its revenue and trust funds. Social Security is one of the few government programs with built-in fiscal discipline.

https://www.forbes.com/sites/teresaghilarducci/2018/11/02/republican-public-opposition-to-social-security-and-medicare/?sh=29480cc84e71

COMMENTARY AND ANALYSIS

After Governor Michelle Lujan Grisham gave her January 18 State of the State address, State Republican leadership held a news conference to voice their reaction to the speech. Not at all surprising in an election year, Republicans were negative. Top-ranking Republicans went so far as to accuse Lujan Grisham of shifting her priorities because it’s an election year.

New Mexico’s Republican Party Chairman Steve Pearce, who lost to Lujan Grisham in 2018 for Governor, said her policies have not yielded results, despite spending increases over the last three years and he said:

“This governor needs to take a serious look at what is happening around New Mexico before taking another band-aid approach to fixing our crises.”

New Mexico Republican State Party Chairman Steve Pearce was the Southern Congressional District 2 Congressman for 12 years during which time he was a member of the ultra-conservative and decidedly pro Der Führer Trump Freedom Caucus, meaning their freedoms and not ours.

Congressman Steve Pearce voted to repeal the Affordable Care Act which many New Mexicans rely on and voted with Der Führer Trump 94.6% of the time. In 2017, Pearce voted for the Republican 2017 “Tax Cuts and Jobs Act” which gave corporations and the richest 1% tax cut relief. Those tax cuts relied heavily on Social Security cuts, Medicare cuts and Medicaid cuts to pay for the tax cuts for large corporations and the rich.

https://www.lcsun-news.com/story/news/politics/2017/11/02/new-mexico-delegation-split-gop-tax-cut-plan/827058001/

https://nmdemocrats.org/news/dpnm-if-steve-pearce-thinks-he-should-be-governor-after-voting-against-the-interests-of-new-mexicans-he-should-know-he-cant-fool-voters/

When reacting to the Governor’s State of the State address, not a single Republican holding a leadership position could bring themselves to say anything good about the Governor nor say what they agreed with or what they could support. Not a single Republican at the post speech press conference mentioned the Governor’s proposed tax cut.

House Republican Floor Leader James Townsend of Artesia took the “smart-ass” approach when commenting on the Governor’s State of the State address and he said:

“I thought for a minute she actually became a Republican for the election cycle.”

The Republican legislators totally ignored the Governor’s proposal to exclude Social Security benefits from state income taxation. Instead of giving any credit to the Governor they simply turned around and introduced their own bills on excluding Social Security income from state income taxation and the Republican leadership endorsed the Republican sponsored Senate Bill 121 .

Simply put, what is happening in the New Mexico legislature is that Der Führer Trump Republicans are falling all over themselves to support excluding Social Security from state income taxation. They are doing it to pander to senior citizens of New Mexico because it’s in an election year. The Republican New Mexico legislators, who usually walk “lock step” with their Chairman Steve Pierce, realize that they cannot afford to alienate one of the strongest and most reliable voting blocks in New Mexico: senior citizens who are on fixed income and who rely on social security to survive. The problem for Republicans is that New Mexico senior citizens are not as stupid as they think they are and see right through an election ploy by Republicans.

NEWS UPDATE

It has been reported that on January 25, HB 48 bill exempting Social Security retirement income from taxation stalled in the House Labor, Veterans’ and Military Affairs Committee on a 4-4 vote. Four of 5 Democrat Representatives on the committee voted No while Albuquerque Democrat Miguel P. Garcia voted yes with the 3 Republicans on the committee. The tie 4-4 vote means the proposal, one of several measures filed at the Roundhouse dealing with taxing Social Security benefits, could be brought back for further debate. There are 5 bills introduced on no State taxation of social security with Governor Lujan Grisham endorsing SB 108, the bill sponsored by Albuquerque South Valley Demarcate Michael Padilla.

https://www.abqjournal.com/2464381/social-security-tax-bill-stalls-in-first-house-committee.html