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Rebuttable Presumption Bill Tabled

New Mexico's 1st District Court Building in Santa Fe
Kevin Meerschaert
New Mexico's 1st District Court Building in Santa Fe

A bill that would have made major changes to New Mexico’s pre-trial release laws was tabled by the Senate Health and Public Affairs Committee on Wednesday. 

The Rebuttable Presumption Against Release Bill, SB123, would have required that individuals charged with certain serious violent offenses would not be eligible for pretrial release unless they can prove to the court they wouldn’t be a danger.

Now that burden rests fully on the prosecutor.

Under the bill it would be assumed that the prosecutor has satisfied the burden of proof based on probable cause.  

It’s been controversial ever since it was first introduced last session.

Supporters say the bill would make the streets safer by keeping dangerous criminals behind bars while they are awaiting trial. It has the backing of the Governor and Bernalillo County District Attorney Sam Bregman. 

Bregman says the current system is broken and needs to be changed.

“A useful comparison is found specifically in the federal system which is codified in 18 USC 3142,” he said. “I’m not suggesting anything more but to have a similar process in our state courts as we do in our federal courts”     

But opponents say the bill may be illegal according to the state constitution, which requires a prosecutor to prove - quote -“by clear and convincing evidence that no release conditions will reasonably protect the safety of any other person or the community.” 

A legislative report also says the bill would cost about $15 million a year. While SB123 is dead for this session, others dealing with pretrial releases remain. 

Senate Bill 174 also establishes a rebuttable presumption but disallows courts from excusing a defendant from posting bail unless the defendant proves they lack the financial means to do so. 

House Bill 74 proposes statutory requirements for constitutionally required hearings contained in the state constitution. Both are still in committee.    

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