Politics and the Bench
A History of Bail Reform in New Mexico
Where did it start? Why is New Mexico experiencing increased crime rates? How did “bail reform” affect the criminal justice system?
As Chief Justice of the New Mexico Supreme Court, Charles Daniels urged legislators and voters in New Mexico to pass a constitutional amendment to change the bail system. He broke with the judicial tradition of impartiality, and waged a loud campaign for the amendment — pressuring both legislators and the public from his position on the bench.
While Justice Daniels was a man of good will who intended to do the right thing for the state of New Mexico, the bail reform amendment ultimately created more problems than it solved.
Justice Daniels teamed up with Democrat legislators to publicly push for the passage of the bail amendment. He is seen here testifying in front of a New Mexican Senate Rules Committee meeting — with Sen. Peter Wirth and Rep. Antonio Maestas.
The Problems
In 2016, voters approved a constitutional amendment (Article II, Section 13) that placed the burden on prosecutors to “prove by clear and convincing evidence” — before trial — that a defendant is dangerous. Otherwise the defendant is eligible for pretrial release (gets out of jail), as determined by the court.
The amendment was a poorly devised bail reform attempt that unintentionally led to a rotating door of crime. Legislators paid insufficient attention to the language of the amendment and how it would affect existing law, court proceedings, and public safety.
Though it was modeled after similar bail reforms on the state and federal levels, New Mexico’s amendment does not incorporate some key provisions.
According to the 2016 amendment, only those who are alleged to have committed capital offenses (crimes that would earn the death penalty) are automatically presumed to be held without bail (no pretrial release).
However, the amendment failed to account for the New Mexico legislature’s 2009 abolition of capital punishment — meaning the capital offenses requirement within the amendment does not actually apply to any possible crimes in New Mexico.
This has led to a situation where even defendants accused of first degree murder are not automatically detained and therefore initially eligible for pre-trial release.
“Defendants who have extensive criminal history, repeat offenders and felony convictions are being released with nothing but their promise to appear and they’re not appearing.”
-Gerald Madrid, former President of the Bail Bond Association of New Mexico
Almogordo Daily News, 10/30/15
Furthermore, the amendment does not allow the courts to seriously consider flight risk as a wholly determining factor for pretrial detention, which has led to an extremely high rate of failures to appear, most especially in Bernalillo County.
Instead, the amendment only allows for pretrial detention when a prosecutor has proven to the court that the defendant is dangerous to a person and/or the community — not flight risk, not risk of committing property or drug crimes, nor any nonviolent crime.
Some District Attorneys say this unfairly places NM prosecutors in the position of essentially conducting two trials: the first requiring them to establish that the defendant is a danger to the community, and the second to prove that the defendant committed the crime of which they are accused.
NM prosecutors generally lack the resources to conduct two trials as to each criminal defendant. Sometimes, the only real route available is to allow the release of the accused defendant, even when the defendant may have a history of violent crime.
Since 2017, the majority of alleged criminals within state courts have been released pretrial.
“The reality in New Mexico is that judges release more dangerous defendants than other bail-reform jurisdictions. Because New Mexico’s current rules result in the release of dangerous defendants, they conflict with the ballot’s promise to the voters that judges would detain dangerous defendants.”
-Minority Report: Ad Hoc Committee to Review Pretrial Release and Detention Procedures (2020)
The bail reform amendment fundamentally changed the New Mexico’s justice system. Since the passage of the amendment, violent crime has significantly increased (CLICK HERE to see the data and see why we're fighting for “Safer Communities”).
“New Mexico is the only jurisdiction in the country that does not have a presumption to detain defendants charged with premeditated murder.”
-Minority Report: Ad Hoc Committee to Review Pretrial Release and Detention Procedures (2020)
Nearly 4 years after its passage, New Mexico is dealing with an increased wave of violent crime - the unintended consequences of the flawed amendment.
To learn more about the impact that the bail reform amendment is having on New Mexico, click here.
To learn more about the influence of trial lawyers on our elections, click here.
Violent Crime
Number of murders, rapes, robberies and aggravated assaults per 100,000 population. Sources: America’s Health Rankings, U.S. Department of Justice Federal Bureau of Investigation
Update: Successful Pretrial Detention Changes
In November 2020, the New Mexico Supreme Court adopted changes that improve will public safety by ensuring potentially dangerous individuals are not released while waiting for trial.
The rule changes help ensure prosecutors and judges are equipped with the necessary time and resources to adequately determine if a defendant is a risk to New Mexico communities, when charged with certain violent crimes.
This is an important public safety victory and first step towards reducing the epidemic of violent crime in New Mexico.