Brief Analysis of Proposed Constitutional Amendment 1
2016
SUMMARY of Proposed Constitutional Amendment 1
Constitutional Amendment 1 would amend Article 2, Section 13 of the Constitution of New Mexico to change the conditions under which a defendant can be denied bail. At present, bail may be denied only for a defendant charged with a capital felony, a defendant with two or more felony convictions in New Mexico or a defendant accused of a felony involving the use of a deadly weapon if the defendant has a felony conviction in New Mexico. The proposed amendment would change these requirements, allowing bail to be denied for a defendant who has been charged with a felony if the prosecutor can prove to a judge that the defendant poses a threat to the public. The proposed amendment would also provide that a defendant who is not a danger to the community or a flight risk cannot be denied bail solely because of the defendant's financial inability to post a money or property bond.
BACKGROUND AND INFORMATION Regarding the Right to Bail in New Mexico
A provision regarding bail was a feature of the Bill of Rights in the Constitution of New Mexico at the time of statehood. Originally, the provision provided that all persons shall be bailable, with an exception for those accused of capital offenses "when the proof is evident or the presumption great", and that "excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted". The original bail provision was modeled on the provision regarding bail in the United States Constitution's Eighth Amendment.
The vast majority of states had similar provisions in their constitutions, but many amended their constitutions to change these provisions. The bail provision for New Mexico remained unchanged until the 1980s, when it was amended twice. The principal change in 1980 provided that bail may be denied by a district court for 60 days when: a defendant is accused of a felony and has two prior felony convictions within the state; or when a defendant has been accused of a felony involving the use of a deadly weapon and has a prior felony conviction within the state. The change also allowed for an extension of the time someone can be incarcerated without being granted bail. A 1988 change added that the constitutional right to bail only applied to defendants prior to their convictions.
In 2014, the New Mexico Supreme Court, in State v. Brown, held that a district court abused its discretion by setting a high bond based solely on the nature of the offense charged against the defendant. In that opinion, the court noted its understanding that other courts may have been imposing bonds based solely on the nature of the charged offense, without balancing the factors required by law and court rule.
There has been a great deal of discussion in the state over bail reform since the Brown decision, including the creation by the supreme court of a task force to study the use of bail throughout the state. The task force recommended that the Constitution of New Mexico be amended to address release on bail. Approximately 40 percent of defendants incarcerated in the state are held pending trial — that is, their innocence or guilt has not yet been determined.
Defendants post bail to guarantee their appearance in court. Defendants who fail to appear lose the money they have posted.
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