Experts weigh proposals on pretrial detention

Report to be issued; top court can accept, reject, change it

A committee created to look at the pretrial detention system in New Mexico shot down a proposal that would have essentially forced certain defendants to prove they’re not dangerous to get out of jail.

The Ad Hoc Pretrial Detention Committee, created by the Supreme Court in January, met for six hours Tuesday to discuss and vote on the proposed changes. The committee is made up of prosecutors, defense attorneys, judges and legislators.

Most of the proposals were rejected Tuesday. The Supreme Court could accept or override the proposals. The committee’s chairman, retired Supreme Court Justice Edward L. Chavez, said he will write a detailed report on Tuesday’s meeting and present it to the Supreme Court.

In 2016 New Mexico voters approved a constitutional amendment that allowed judges to keep dangerous defendants in jail until trial, while also keeping nondangerous defendants out of custody.

Prosecutors have asked the Supreme Court for clarification and guidance on how the rules work.

The 2nd Judicial District Attorney’s

Office in May 2019 proposed a plan to implement “rebuttable presumptions” which would make it easier to detain defendants in the most serious and violent cases.

Under the proposal, a defendant would be presumed dangerous if he or she is accused of a violent felony, had a gun while committing the crime or has been convicted of a violent felony in the past five years. The proposal would have forced the defense to prove that anyone meeting this criteria isn’t dangerous, whereas now the burden of proof is on the prosecution.

“What presumptions really do is send a signal to judges about which crimes are essentially the most serious ones, and which crimes should be flagged as potentially resulting in violence if the person is released,” said Deputy District Attorney James Grayson, who was the meeting’s designee for DA Raúl Torrez.

Jonathan Ibarra, representing the state Law Offices of the Public Defender, said he strongly opposes rebuttable presumptions and believes more people would be detained under this proposal.

University of New Mexico School of

Law Professor Leo Romero said the burden of proof would be shifted to the defendant and the political pressure on judges “would just be too much” if the proposal was adopted.

“They won’t be really scrutinizing the evidence and probably just relying on the nature of the offense charged,” Romero said.

The committee voted against the proposal after about 30 minutes of discussion. Regardless of what the Supreme Court does, lawmakers and voters could enact the rebuttable presumption proposal through a constitutional amendment.