In 2016, the New Mexico Legislature passed a constitutional amendment giving judges new authority to deny release to proven dangerous or high-risk defendants—even if such defendants can pay to buy a bail bond. Judges were also given the authority to release defendants who aren’t a danger to society or a flight risk.
In part, the amendment reads:
“Bail may be denied by a court of record pending trial for a defendant charged with a felony if the prosecuting authority 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. An appeal from an order denying bail shall be given preference over all other matters.
A person who is not detainable on the grounds of dangerousness nor a flight risk in the absence of bond and is otherwise eligible for bail shall not be detained solely because of financial inability to post a money or property bond. A defendant who is neither a danger nor a flight risk and who has a financial inability to post a money or property bond may file a motion with the court requesting relief from the requirement to post bond. The court shall rule on the motion in an expedited manner.”
What does this mean for defendants?
These changes in the law affect how bail bonds of all types are used as well as how low- and high risk defendants are treated prior to court appearances.
Defined Use of Bail Bonds
- The use of fixed-money bond schedules has been discontinued. Instead, there is tighter regulation of early release procedures by detention centers and court employees.
- The new rules do not outlaw the selling of bail bonds or their requirement by a court where financial security is appropriate to a specific case. The new legislation continues previous legal requirements that money bonds can be required only when needed to make sure a defendant appears in court as scheduled.
Low-Risk Defendants
- Low-risk defendants cannot be kept in jail before a trial just because they cannot pay a bond.
- In place of the old bail bond system, a pretrial risk assessment tool is used to determine whether a low-risk defendant is likely to appear in court or get rearrested if released before trial. Use of such a tool is designed to reduce bias and subjectivity in court rulings.
- Both prosecutors and defense counsel can appeal pretrial release and detention decisions and obtain prompt rulings.
High-Risk Defendants
- Prosecutors now have new authority to request and district judges have new authority to prevent release of defendants assessed as dangerous or high risk, no matter how much said defendants can pay for a bond.
- All judges have the authority to amend conditions or to revoke pretrial release entirely for defendants who commit new crimes while released. This was not possible before the new amendment.
- Both prosecutors and defense counsel can appeal pretrial release and detention decisions and obtain prompt rulings.
- It remains as part of the law that excessive bail shall not be required and excessive fines cannot be imposed as “punishment” before the defendant goes to trial.
Helping You Understand the Law
This amendment was designed to protect all defendants, who are innocent until proven guilty, receive due process of the law. It reduces the possibility of low-risk defendants being detained unnecessarily in jail at the taxpayers’ expense. At the same time, it gives prosecutors and defense attorneys the opportunity to obtain pretrial release and detention decisions promptly for high-risk defendants. The new law subsequently protects the general public from the release of potentially dangerous defendants who could previously post a bond without being assessed by the court.
Contact Us
Erlinda Ocampo Johnson is a seasoned, passionate criminal defense attorney who is available to help you better understand the law and how it applies to your case. She has over a decade of experience serving in the State and Federal Prosecutor’s Offices and specializes in several areas of criminal defense. Contact the Law Office of Erlinda Ocampo Johnson today. We will fight for the best outcome possible for you and your loved ones.
