State Supreme Court's changes to pretrial release procedures get mixed review

May 8—Changes to New Mexico's pretrial release and detention rules that went into effect Wednesday drew mixed reactions.

Some top prosecutors and the governor applauded the revision as an important step to fix gaps in the system that benefit repeat offenders, while defense attorneys criticized the rule change process as an overreach by the state Supreme Court.

At least one public defender predicted the change would create more work for attorneys without meaningfully improving public safety.

The New Mexico Supreme Court on Wednesday issued an order finalizing the rule changes, which aim "to promote public safety and require courts to reconsider the release conditions of defendants arrested for a new crime while awaiting trial," the state Administrative Office of the Courts said in a news release.

Parts of new procedures align with a bill the state Legislature passed in February.

There's a key difference. The changes enacted by the court call for a defendant with a pending felony or certain misdemeanors who is arrested again on new felony counts or misdemeanors to remain jailed until a judge in the initial case decides whether to modify or revoke their conditions of release. The legislation signed into law, however, applied only to felony defendants accused of a subsequent felony.

Defense attorney Jennifer Burrill argued the court's changes went beyond the scope of the new law and said the court was performing a "legislative function" by selecting certain misdemeanor charges to include in the rule.

The new rule includes "enumerated misdemeanors": charges of battery against a household member, stalking, harassment, driving under the influence of intoxicating liquor or drugs, operating a motorboat while under the influence of intoxicating liquor or drugs, or a violation of an order of protection.

Senate Bill 271 — sponsored by Sens. Daniel Ivey-Soto, D-Albuquerque, and Joseph Cervantes, D-Las Cruces, and signed into law in March by Gov. Michelle Lujan Grisham — called for the new court procedure but did not include any misdemeanor charges.

Administrative Office of the Courts spokesman Barry Massey said the Supreme Court's rule change process was underway in 2023, and Ivey-Soto was advised of the proposed changes.

The revisions include several other changes in criminal procedure for the courts. Among them are the following:

* Removing an option for judges to require mental health or addiction treatment as a condition of release from jail.

* Prohibiting judges from using the results of a "public safety assessment" — which measures prior violent convictions and failures to appear in court — to decide whether someone is released or kept in jail until their trial.

* Requiring judges to consider whether to modify or revoke the release conditions for someone accused of violating the conditions of their release.

* Setting a deadline of seven days to hold an evidentiary hearing following an initial hearing if a defendant is in custody and a deadline of 10 days if they are not.

A spokeswoman for Lujan Grisham wrote in an email the Governor's Office supports the procedural change enacted by the court.

"The Governor supports this change, which closely mirrors Senate Bill 271, the 'no bond hold' bill signed during the previous session," spokeswoman Jodi McGinnis-Porter wrote. "We're still reviewing the state Supreme Court's rule changes but are pleased to see indications that they've adopted measures akin to those advocated by the Governor and enshrined in SB 271."

The governor has backed a more stringent but unsuccessful pretrial detention bill, one that would have put the burden on some defendants in violent crime cases to provide evidence they pose no danger to the community and should be released until their trial.

The proposed measure has raised concerns about constitutionality and costs.

New Mexico's current pretrial detention system requires prosecutors to provide evidence demonstrating to a state district judge a defendant poses a threat and should not be released on any conditions.

Several district attorneys wrote public comments in support of the Supreme Court's pretrial detention changes, including 2nd Judicial District Attorney Sam Bregman.

But Bregman wrote his office supported a "no-bond hold" for a defendant accused of "any new offense, while a current case is pending." Bregman noted in his comment the "enumerated misdemeanors" did not include charges of resisting arrest, battery or shoplifting.

Burrill suggested the court had overstepped its role.

"We have these 'serious violent offenses,' and the Legislature defines what the serious violent offenses are, but here the court has taken it upon itself to define what [enumerated misdemeanors] are," she said.

Chief Public Defender Ben Baur wrote in a public comment in March the differences between the proposed changes and the procedures outlined in SB 271 would "lead to increased workloads for prosecutors, defense attorneys and court staff, with no evidence indicating an increase in public safety or reduction in recidivism."

He added, "This rule proposal requires a hearing rather than allowing a court to review matters on pleadings when they deem it appropriate. Meanwhile, it provides no remedy if that hearing is not held within the suggested time frame."

Baur's comment indicated a rule change more closely aligned with the text of SB 271 would have been more "reasonable and practical."

"As with any rule change, like the one announced today, we have to wait to see how it works in the courtroom," Baur said Wednesday. "We will closely watch for its impact on our clients and our workload."