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NM Gov ‘dismayed’ as bill to shift burden of proof to keep accused in jail stalls

Grant Durr

In a statement Monday evening, Gov. Michelle Lujan Grisham said she was “dismayed” that a Senate committee didn’t pass a bill that would keep more New Mexicans accused of crimes behind bars before being given a fair trial. Similar proposals have been shot down several years in a row now over concerns that it’s not a lawful or effective way to reduce violent crime in the state.

Back in 2016, voters approved a constitutional amendment that reformed New Mexico’s cash bail system. In its place, judges were given the power to decide whether a defendant should stay in jail while they await trial. It’s on prosecutors to prove that there is no way the community could be safe if that person were out on the street.

“I don’t think we intended for it to be a full revolving door, which is what most believe it has become,” Democratic Bernalillo County District Attorney Sam Bregman told lawmakers on the Senate Health and Public Affairs committee Monday.

He supports the Republican-sponsored Senate Bill 122 along with the governor.

“This bill tries to close that door,” he said.

It would presume a person accused of a violent crime is a danger to the community and make it the defense’s job to prove they could safely be let out.

However, research does not support the idea that most people who are released commit more violent crimes before standing trial. A 2021 study from the New Mexico Statistical Analysis Center found that only happened in 3-5% of cases.

Lujan Grisham said in her statement that shifting the burden of proof is “not an extreme policy,” and “is modeled after federal law that has been in place for decades.”

However, critics like Democratic Sen. Antointte Sedillo Lopez point out that what works on the federal level doesn’t necessarily work in New Mexico.

“It’s a waste of time to pass state laws that we know violate our state constitution,” she told Bregman and bill sponsor Craig Brandt (R-Sandoval) Monday.

A provision in the New Mexico constitution states a judge may deny bail pending trial only if a prosecutor “requests a hearing and proves by clear and convincing evidence that no release conditions will reasonably protect the safety of any other person or the community.”

The committee tabled the bill on a 5-4 vote, with all Republicans and Democratic Sen. Martin Hickey opposed.

While tabled bills can be taken back up, it is unlikely. Especially in this short, 30-day session that ends on February 15.

Nash Jones (they/them) is a general assignment reporter in the KUNM newsroom and the local host of NPR's All Things Considered (weekdays on KUNM, 5-7 p.m. MT). You can reach them at nashjones@kunm.org or on Twitter @nashjonesradio.
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