New Mexico Supreme Court changes rules on pretrial release

May 8—The New Mexico Supreme Court revised pretrial release rules to hold people behind bars — at least temporarily — if they commit certain crimes while awaiting trial.

The order was issued on Wednesday and will take effect immediately for both pending and newly filed cases. It is similar in scope to Senate Bill 271, which became law this past session.

Those already on pretrial release who are charged with a felony, or some misdemeanors, will be held in jail until a court decides whether to revoke or modify the conditions of their release. Misdemeanor charges applied to the rule change include DWI, negligent use of a firearm, aggravated battery, stalking and domestic violence.

According to the revisions, a judge must also consider whether to modify persons' pretrial release when they have broken their original conditions, such as missing curfew.

"If a court determines no changes are necessary, it must issue an order explaining the decision. Under previous rules, such a review of pretrial conditions was discretionary," according to a release from the state Administrative Office of the Courts.

AOC Deputy Director Karl Reifsteck said the changes will help protect communities "while honoring the constitutional rights of people accused of a crime."

AOC Director Artie Pepin said the revisions ensure that courts from the smallest towns to metro areas follow the same procedures when someone is arrested while on pretrial release.

"The rules set short deadlines for hearings and issuing orders after courts consider whether to revoke or change the conditions under which a defendant was initially released to await trial," Pepin said.

Chief Public Defender Ben Baur, with the Law Offices of the Public Defender, said in a statement, "As with any rule change, like the one announced today, we have to wait to see how it works in the courtroom. We will closely watch for its impact on our clients and our workload."

Mayor Tim Keller said Wednesday the Supreme Court "made a very common sense but specific change to basically say, 'If you are out for arrest and are arrested again, you have to stay.'"

"This is something that's just a very eloquent, simple legal solution, and it's something that we're very, very much appreciative to," he said.

Pretrial detention and pretrial release have been hot-button topics for the past several years after a 2016 constitutional amendment passed by voters did away with a money-based system for getting out of jail while awaiting trial.

Since then, politicians on both sides of the aisle and law enforcement have attributed rising crime and a "broken" justice system to bail reform changes.

Attorney General Raúl Torrez, the former Bernalillo County district attorney, has been one of the most outspoken critics. More recently, Torrez has repeatedly called for New Mexico courts to mirror those at the federal level, which use rebuttable presumption — where suspects must prove they are not a danger and can be released.

A bill adopting rebuttable presumption in the state's judicial system has failed to pass the New Mexico Legislature for several years. This past session, Gov. Michelle Lujan Grisham pushed for the bill and, after it and other crime bills failed, she announced a special session, which is slated for July.

Studies conducted by researchers at the University of New Mexico have found that the majority, or 82%, of people on pretrial release do not commit new crimes.

No studies have been released publicly that have found otherwise.

UNM researcher Paul Guerin said it's too early to tell how the Supreme Court rule change will play out.

"It seems to make sense, on the face of it, as a citizen," he said.

Guerin said many of the people who would fall under this rule would already be held anyway in the current system.

He added, "What we do know is rebuttable presumptions don't work, so this is a lesser to that."

A 2021 study by Guerin and others at UNM's Institute for Social Research found that rebuttable presumption requires judges to "regard large classes of defendants as dangerous by default, rather than demanding that prosecutors prove this individually."

Researchers said supporters argue that rebuttable presumption prevents "a large amount of crime with minimal impact on civil liberties."

"We have shown that this is not the case, both because a small fraction of crime is committed by pretrial defendants, and because presumptions detain many defendants for each crime they prevent," the researchers wrote in the findings.

The researchers emphasized that the findings should not be taken "as an endorsement" of the current system, but in data comparison found that presumptions "would not add accuracy to the system."

"That does not mean that the system could not be reformed in other ways," according to the findings.