The New Mexico Constitution guarantees virtually every criminal defendant a right to bail and, with it, a chance at getting out of jail while awaiting trial.

Now voters have the choice in the general election of changing the constitution to allow district court judges greater discretion by denying bail altogether for defendants considered dangerous or who have histories of flouting court orders. Prosecutors say this would ensure that the most dangerous defendants cannot get back on the street at any price.

The same amendment also would establish that nonviolent defendants are not to remain in jail simply because they cannot afford bail. But the defense bar is worried about the strength of that provision, arguing it does not do enough to prevent nonviolent defendants from languishing behind bars at taxpayer expense.

“We could not support a bill that was basically amended for the interests of the bondsmen’s industry,” said Rikki-Lee Chavez, a practicing attorney and the lobbyist for the New Mexico Criminal Defense Lawyers Association. The group withdrew its support for the proposed constitutional change after it was amended by the Legislature in February through negotiations with bail bondsmen, who staunchly opposed it.

Defense lawyers say indigent defendants held on minor charges may end up getting little relief from the amendment because they need representation to argue for release on their own recognizance or for low bail. Private lawyers cost money, and the Law Offices of the Public Defender is so cash-strapped that it recently stopped taking clients in Hobbs because it says it can’t adequately represent them.

State Supreme Court Justice Charles W. Daniels, the amendment’s most ardent advocate, dismisses arguments that the compromise watered down the constitutional amendment. A provision remains that would effectively prohibit detaining defendants for no other reason than that they cannot afford bail, and it would let judges know they have force of law behind them in releasing nonviolent defendants from jail, he said.

Existing rules and policies already prohibit judges from setting unreasonably high bonds while offering courts the option of releasing defendants without paying anything, he added. The amendment, Daniels said, will enshrine that principle in the state constitution.

The proposal comes as judges grapple with a 2014 state Supreme Court ruling that Daniels authored. It prohibits courts from setting bonds so high that criminal defendants could not reasonably be expected to pay them.

Setting bond beyond the financial means of a defendant, the Supreme Court decided, violates the defendant’s right to a presumption of innocence. But the decision also left judges with fewer options for keeping potentially dangerous defendants in jail.

The constitution already allows judges to lock up defendants without bail in a narrow set of cases, such as murder and other particularly violent crimes in which the government has substantial evidence. Convicted felons can be locked up temporarily without bail, too, under certain circumstances.

But the Supreme Court’s decision in State v. Brown, in which a murder defendant challenged a $250,000 bond as unfair, in part because he couldn’t come close to paying it, prompted the justices to consider broader changes in the state’s rules and laws regarding bail.

Daniels himself has criticized the process for setting bail as unfair. By attaching a dollar figure to a defendant’s release, he has said, those who can afford to pay will get out of jail regardless of the danger they might pose to the community while those who cannot scrape together the money for bail sit behind bars, even if they do not have a history of violence.

The chief justice describes the current system as the equivalent of using a trawler’s net to catch a shark, scooping up small fish in the process.

So the state Supreme Court convened a committee of lawyers, judges, bondsmen and others last year to study possible improvements to the state’s bail system. It recommended changing the state constitution’s section on bail.

Following that recommendation, Democratic legislators proposed a resolution earlier this year with two parts. The first would give judges authority to deny bail to defendants they determine to be dangerous or unlikely to attend court hearings. The second piece would allow judges to release defendants who are not considered a threat to anyone but are jailed simply because they do not have the money to post bail.

A broad coalition backed the proposal, including the New Mexico Conference of Catholic Bishops and the Greater Albuquerque Chamber of Commerce. Officials from county governments testified in favor of the proposal, saying it would cut the costs of holding nonviolent people in their jails.

The state Senate approved the proposal 29-9. But the provision to eliminate bail payments met stiff resistance in the House of Representatives. Lobbyists representing bail bondsmen, who make a living charging defendants to front the money to get out of jail, pressed House members to scuttle that part of the constitutional amendment.

Bondsmen said that, by combining provisions allowing judges to jail defendants without bail and release others without cost, the amendment’s backers were attempting to undercut their business. They maintain that public expenses also are held in check by the bail system.

Dario Gomez, a bondsman in Las Cruces, says his business offers an assurance that defendants will return to court while sparing taxpayers the costs of jail and pretrial services.

“I’m not worried about how much money I’m going to lose,” he said. “We got to make sure these people are held accountable for the crimes they commit.”

Some legislators also opposed the original amendment, saying it risked letting dangerous defendants out of jail. As the measure faced death in House committees, its backers agreed to negotiate with bail bondsmen on changing the proposal.

Negotiations led to the addition of two sentences in the amendment. They state that anyone who is not considered a danger or a flight risk but who is jailed and cannot afford to post bond may file a motion with the court requesting release without paying anything.

In a practical sense, though, the defense bar says this leaves poor people in a position of being jailed while they try to navigate the legal system to seek release.

A staffer for the American Civil Liberties Union of New Mexico raised concerns at the time about how judges would interpret the provision and said the group was wary about “enshrining preventative detention in the state constitution.”

But those two extra lines won the measure a 69-0 vote in the House of Representatives, getting it on the election ballot.

The bail measure is the only state constitutional amendment before voters.

Contact Andrew Oxford at 505-986-3093 or Follow him on Twitter @andrewboxford.

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