Why New Mexico is seeking to change the rules for detaining criminal suspects

ALBUQUERQUE, N.M. (KRQE) – Years after voters passed a constitutional amendment overhauling the state’s criminal bail system, New Mexico lawmakers are now facing a tough question. Should the state make it harder for certain criminal suspects to get out of jail while awaiting trial for a specific set of violent or serious crimes?

A proposed law aiming to change the state’s rules on pretrial detention is now at the center of a heated debate this legislative session. Over the next few weeks, lawmakers, prosecutors and criminal justice advocates will make their case on how the state should handle New Mexico’s accused violent criminals.

In an effort to help clarify the conversation, KRQE News 13 is explaining key terms, breaking down the data and speaking to some of the key players involved in the debate over what lawmakers are calling the proposed “rebuttable presumption statute.”

What is “pretrial detention?”

To start – you should know about “pretrial detention.” The term is used to describe one option for keeping an eye on accused violent criminals before they face trial. It means to keep accused criminals in custody, or in jail, through their trial.

Under the State Constitution, prosecutors — the people that try to put criminals in prison — can try to keep accused criminals detained before trial, rather than releasing them on bail. To do that, the prosecutor is required to prove in court “by clear and convincing evidence that no release conditions will reasonably protect the safety of any other person or the community.”

Ultimately, a district court judge will decide in a hearing if the state should detain the accused criminal. In Bernalillo and San Juan counties, judges make that decision, in part, based on a scoring sheet that helps them rank the likelihood that the accused criminal will commit a new crime if they are not held before the trial. That tool or ranking system is called the “Public Safety Assessment (PSA)” by New Mexico courts. It’s also sometimes referred to as “The Arnold Tool,” named after its creator, a social reform organization called Arnold Ventures.

Some people, including Bernalillo County District Attorney Raúl Torrez, say the assessment is defective. In a January 2022 memo, Torrez said the PSA tool “scores a defendant’s risk of committing new criminal activity and failing to appear for court,” claiming the tool barely distinguishes between violent and non-violent crime, while failing to distinguish between the degree of violent crime at all.

“It is more difficult to keep a dangerous defendant in jail before trial in Bernalillo County than elsewhere in New Mexico because the court relies in part on defective public safety assessments that unfairly skew detention hearings toward release and fail to give judges an accurate picture of dangerousness,” Torrez’s office wrote in an January 2022 memo about pretrial detention.

Others, such as Paul Guerin, a sociologist and researcher at the University of New Mexico, say the assessment is our community’s best tool to serve public safety while reducing crime. “The best policy right now — the best tool we have before us — is the public safety assessment (PSA),” he told KRQE News 13.

Guerin believes the PSA is the “best policy” available right now, in part, because he says it does a better job identifying other risk factors or indicators assessing if a criminal is likely to commit another crime. Some of those factors include a suspect’s age, prior court hearing attendance or if they’ve been convicted of other violent offenses.

Aside from the public safety assessment, judges can also consider arguments and evidence presented by prosecutors during a pretrial detention hearing. Those hearings can also include witness testimony, effectively making some pretrial detention hearings like a mini-trial, where a judge will ultimately decide if a suspect should be detained before facing a possible criminal trial. A decision on pretrial detention ultimately has no bearing on if the larger criminal case will move forward.

So, there’s a debate over how the decision to detain accused violent criminals should be made — and in some cases, the debate surrounds which accused criminals should be detained. The buzzword of the debate, of course, is “rebuttable presumption.”

What is “rebuttable presumption?”

Democratic Governor Michelle Lujan Grisham has requested legislators consider House Bill 5 (HB 5,) the “rebuttable presumption statute.” The proposal would establish a new state law judges must consider when evaluating if criminals accused of certain crimes should be jailed ahead of trial.

The law would outline that certain criminals accused of a specific set of crimes should be presumed dangerous, and should be detained through trial. It would not amend the state’s constitution, but instead allows prosecutors to use evidence of probable cause that the defendant committed a crime as significant proof that an accused criminal should be detained.

According to the proposal, the presumption that a defendant is dangerous would be “subject to rebuttal by the defendant” during a pretrial detention hearing. The ultimate decision to detain a suspect ahead of trial would still be left to a district court judge, meaning even if an accused criminal were presumed “dangerous” under a rebuttable presumption statute, it wouldn’t automatically mean they’ll be detained through trial.

Notably though, the proposed rebuttable presumption statute would in essence help prosecutors more easily make an argument that an accused criminal suspect is dangerous by presuming the crime they’re accused of automatically makes them dangerous. Because of that presumption, defense attorneys would seemingly face more pressure to argue why certain accused criminals should be released while awaiting a criminal trial.

Which crimes would rebuttable presumption apply to?

As proposed in the 2022 regular legislative session, the rebuttable presumption statute wouldn’t apply to all accused criminals. Instead, it would apply to some accusations of serious violent offenses, such as first-degree murder or child abuse, first and second-degree criminal sexual penetration, shooting from a motor vehicle, etc.

• For a full list of crimes covered under House Bill 5, check out the list at the bottom of the story.

It also includes accusations of felonies where a firearm was brandished or shot and felonies resulting in great harm or death, among several other offenses. It would also apply to people who commit a second serious violent crime within five years of having been previously convicted of a serious violent offense. To sum it up: Rebuttable presumption would apply to the most serious offenders.

“The first thing that is really important for people to understand, is that this is narrowly, narrowly tailored to what are called ‘serious violent offenses,'” Torrez explains. “That’s a relatively small universe of people.”

According to statistics provided by District Attorney Torrez’s Office, judges in the Second Judicial District have denied over 2,500 pretrial detention motions prosecutors have made since January 1, 2017. The result has been the release of 2,361 defendants Torrez’s office have determined to be “dangerous.”

How many people could the law affect?

Despite being “narrowly tailored” in Torrez’s view, Guerin from UNM says the newly proposed rebuttable presumption bill (House Bill 5) could potentially impact many people. “Rebuttable presumptions would detain a large number of people,” he says.

“House Bill 5, over the four-year period [from July 1, 2017 to June 31, 2021] would have detained an additional 2,100 individuals just under the serious violent offenses, and a few of the other charges,” Guerin says. In addition to those 2,100 detainees, he adds, there would be more people detained under House Bill 5 because they brandished or shot a firearm — but Guerin says he doesn’t have the data to estimate how many more would fall under this charge.

“And of that large number of people in addition that it would detain, we would not expect a lot of those individuals — only a small percentage of those individuals — would commit another violent crime,” he says.

Guerin explains that that’s not an opinion; it’s the conclusion of research he’s done at the UNM Institute for Social Research. In December 2021, he and several other researchers released a study based on four years of case data in Bernalillo County. They looked at over 23,000 cases filed from July 1, 2017 to June 31, 2021 to see how a rebuttable presumption would affect public safety.

Researchers came to those conclusions after looking at the suspects involved in those 23,000 or so cases. Of those suspects, researchers determined how many were released before trial and went on to commit more crimes. Of course, the implication is that if a suspect had been detained before trial through a rebuttable presumption, they wouldn’t have been able to commit additional crimes.

UNM researchers found that between 2017 and 2021, 95% of those released did not commit a new violent crime — meaning that 5% (or 757 of 15,134 defendants) did commit a violent crime. That comes out to roughly 190 violent crimes each year that could be prevented.

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A chart published by the LFC shows that the majority of defendants released before trial tend to not pick up additional criminal charges. Data from UNM researchers.

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Responding to UNM’s data, Torrez argues there is likely more unknown criminal activity associated with the 5% of defendants who committed another crime. He also believes that 5% rate is still “unacceptably high.”

“They [people not dealing with criminals] don’t know the true rate of new criminal offenses by these people [out on pretrial release,] and most of these people already have multiple felonies before they hit the system,” Torrez said in an interview KRQE News 13. “There’s no way of knowing where these people have been and what they’ve been engaged with.”

The numbers from UNM’s research don’t give an exact prediction of how many violent crimes might be prevented by the most recent 2022 rebuttable presumption proposal. That’s in part because the UNM research considered releases based on an older proposal, House Bill 80, from 2021. The HB80 proposal is similar to the 2022 HB5 rebuttable presumption statute currently being discussed in the Legislature, but there are some differences. Despite those differences, Guerin says his research remains relevant: “You’d catch a lot of people [with a rebuttable presumption statute], and very few of those would commit new violent crimes [had they been released from jail.]”

Projecting rebuttable presumption’s impact

A key issue, then, is: How much crime — if any — is acceptable within a community? Especially considering the conclusions from UNM’s research, suggesting a majority of the people detained would not go on to commit new crimes before trial. Guerin notes there are costs, both economic and social, to detaining people.

“Social costs would be like individuals who are detained might lose their jobs and might lose connections to family — [such as losing] custody — the children might be disenrolled from school,” Guerin explains. As for the economic cost, the Legislative Finance Committee recently used UNM’s data to calculate that the bill could cost around $21.9 million above current expenses for detention and related activities over the next three fiscal years.

However, in terms of benefits of detaining more violent crime suspects, Torrez brings up examples of cases where accused criminals were released under the current system and ended up committing violent crimes. A January 2022 memo from Torrez’s office highlights multiple cases, including the story of Jacob Montoya, an Albuquerque man accused of several robberies while out on pretrial release.

“Jacob Montoya is somebody that we moved to detain,” Torrez says. “He had a criminal history that we believe presented a clear danger to the public. He was placed on GPS monitoring. He immediately failed to appear for parole. The battery on that GPS monitor went dead.”

After the monitor went dead, Montoya reportedly “went on a violent crime spree in three adjacent counties,” according to Torrez’s memo. During that time, he reportedly committed multiple armed robberies and fired shots at law enforcement, the memo adds. He was unmonitored for nearly three months, Torrez says.

“Nobody — not the researchers at UNM, not the court personnel or staff — can tell you or anyone else in this community where Jacob Montoya was for those other 90 days that he was out in the world,” Torrez says. “And that’s fundamentally the problem with drawing that conclusion. It’s this idea that a crime is committed there’s an arrest . . . we know . . . there is a high rate of unreported crimes and unsolved crimes.”

Some people, however, are concerned that rebuttable presumption would allow the system to unfairly detain innocent people. After all, rebuttable presumption deals with people accused of crimes, before their case has been argued or settled in court.

“In my estimation, the rebuttable presumption philosophy would unjustifiably and unfairly shift the balance of power to the executive branch officials to incarcerate more innocent individuals,” Marc M. Lowry, an Albuquerque criminal defense attorney, told legislators on Monday, January 24. “Yes, there’s egregious examples of misbehavior,” he says. “Yes, we can pull out horrendous examples of cases gone sideways and bad,” he says. But there are also examples of people unjustly detained, he adds.

Data from the Law Offices of the Public Defender shows that there have been more than 350 cases of people detained before trial in Bernalillo County who then ended up never being convicted of their accused crime. That number is out of the 1,654 pretrial detentions that have been granted in the county from April 2017 to April 2020 and excludes cases sent to federal court or those where defendants took a plea deal.

“The damage done to their lives — from losing jobs, children, pets, vehicles, relationships, progress on drug treatment, stability — doesn’t regularly make the news because it is suffered privately within families. That doesn’t make it any less devastating,” Bennett Baur, the chief public defender for New Mexico, told KRQE in a statement. “This doesn’t minimize the trauma involved in the cases discussed by the DA [District Attorney], but we can’t ignore the damage done by wrongful incarceration and the ripples it causes in our communities.”

Over the years, there have been several high-profile cases of people detained before trial before ending up not being convicted. In 2019, for example, a teenager was mistakenly detained on a murder charge.

KRQE News 13 previously reported the story of 17-year-old Gisell Estrada, who was put behind bars for nearly a week before police learned she was not the correct suspect. “It wasn’t right what they did to me,” Estrada said in 2020. “I just don’t want this to happen to anyone else.”

Do other courts use rebuttable presumption rules?

While rebuttable presumption would be a change for New Mexico, similar systems are in place around the country. Federal courts also currently have something similar.

“The federal courts have been doing this for 40 years. They’ve been doing it effectively,” explains Torrez. “It’s a system that works. It’s a system that’s constitutional.”

But Lowry recently told legislators that there is a key difference between the federal version of rebuttable presumption and what would likely happen in New Mexico: how many resources are available to carry out the program.

“The federal system, which the [New Mexico] proposal would seek to mimic, has a very well-funded, well-designed ‘Swiss clockwork’ system,” Lowry told legislators. The federal system provides involved parties with detailed reports of a defendant’s history, including an in-depth narrative of their history, Lowry said.

“We don’t see anything like this in the state’s system at all,” he says. “There’s a whole host of underlying resource problems that we’ll be immediately confronting . . . and they’re going to be insurmountable.” Ultimately, “this is really a question of: ‘Where do we focus the limited resources that New Mexico has?'” Lowry adds.

District Attorney Torrez says New Mexico has the resources to tackle both rebuttable presumption detentions and fund other areas of public safety, such as boosting law enforcement numbers. “This is part of the problem that we have — that we set up these false choices,” Torrez told KRQE News 13. The community should “be making investments in prevention, in treatment, in tackling root causes, in dealing with kids that are impacted by adverse childhood experiences,” he says. And, “we should add more police officers.”

Will rebuttable presumption become law? What happens then?

No one involved in the debate over rebuttable presumption can say with certainty whether House Bill 5 will make it through the 2022 legislative session. Last year, a similar bill died in the legislature, but the political and social climate has shifted since then.

In 2021, Albuquerque saw a record-breaking 117 homicides. And the Governor has already taken a “tough on crime” stance, outlining her support for rebuttable presumption during a news conference in the week before the legislative session.

“We need tougher penalties for the worst of the worst, the repeat offenders and those who have proven themselves to be a danger to our communities; I support rehabilitation and this administration has done a lot of innovative good work in that area, but at the end of the day I stand with the families and communities who have been victimized unnecessarily by the violent criminals that this system needs to secure,” she said in her speech. “And we are going to pass a law, this session, that will keep violent criminals behind bars until justice can be done.”

Crimes that fall under House Bill 5 as introduced