The Legislative Proposal that Refuses to Die

When news broke earlier this week that the Senate Health and Public Affairs Committee had voted 5-4 to table Senate Bill 122, it seemed like one of the legal terms that most numbs the cerebral cortex would once again slip from the New Mexico lexicon, at least temporarily. 

The phrase: “rebuttable presumption.”  

You’re forgiven if it dredges memories of the kid who dominated speech and debate tournaments in high school. In our state, it has come up — and come up again and come up again — in the context of what prosecutors must prove in court to convince a judge that someone should be held in jail until trial. As it stands, they are required to show by “clear and convincing evidence” that no conditions of release could guarantee community safety. 

During the past few years, high-profile Democrats including Attorney General Raul Torrez, Bernalillo County District Attorney Sam Bregman and Gov. Michelle Lujan Grisham have pushed a bill that would create a presumption that people accused of certain crimes are too dangerous to let out. Of course, they would be able to rebut this presumption, but the deck would be stacked against them. 

SB122 would have accomplished this stacking but, when it thudded onto that Senate committee’s table, that surely meant certain death with just half of a 30-day legislative session left to pass bills and get them to the governor’s desk. 

Right? 

Maybe. 

Lujan Grisham’s press team went to work, blasting lawmakers in a news release that carried the headline: “Governor issues statement on another year of inaction by the Legislature to keep violent offenders behind bars.” (Yes, news releases have headlines these days.)  

The next day, New Mexico in Focus Correspondent Gwyneth Doland interviewed the governor. We wanted, among other things, to hear her reaction to SB122’s demise. Lujan Grisham offered a circuitous response, the clearest portion of which included a suggestion that muddled messaging had been the problem as the governor and others have tried to push this legislation through.  

Lujan Grisham also nodded toward the political motivations behind her support for a rebuttable presumption. 

“I’m really serious about public safety and I think for far too long, Democrats don’t get enough respect about the work that they’re trying to do,” she told Gwyneth. “And, quite frankly, in today’s political climate, you are either very conservative — so [Democrats] do nothing — or you are incredibly liberal, so [Democrats] can’t make one mistake with someone we might arrest or detain. And when we are operating in those kinds of extremes, things typically don’t get better and people get more hostile in the policymaking environment. I think Democrats have to talk seriously about safety.” 

The interview concluded with a cryptic comment from the governor.
 
“Stay tuned,” she said, “because I think we might have another path forward” on changes to the pretrial detention system.  

No new bills have been offered to do so as of this writing — and the deadline has passed for submitting them — but procedural maneuvers remain an option for the governor and her allies to press forward. It is not clear whether any new proposal will include the rebuttable presumption piece. 

Stay tuned, indeed.  

One fact tends to get lost in the debate over who should stay in jail, despite being presumed innocent, until trial: Judges in New Mexico already have the power to keep people they deem dangerous incarcerated. It’s just that the burden is on the state to make the case, as it is — theoretically, anyway — in all other corners of the criminal legal system. New Mexico voters gave judges that power in 2016, when 87% of people who went to the polls approved a change to the state constitution. 

In the before times, whether you stayed in jail pretrial depended on how much money you had, not whether you were dangerous. If you’d like an under-the-hood look at the old system, I spent six months investigating it for a story published at New Mexico In Depth, one of my old journalism homes. (And for those who prefer to listen to their journalism, here is the radio version of that investigation, published in partnership with Reveal from the Center for Investigative Reporting.) 

While no one is suggesting New Mexico return to the grim days of the cash bail system, the governor and lawmakers might do well to remember how many residents here threw their support behind the new system as they propose and debate further tweaks. 

-Jeff Proctor, Executive Producer