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Burden Before Trial

Santa Fe’s district attorney weighs the pros and cons of New Mexico’s pretrial detention rules as a governor-backed reform effort stalls in the Legislature

New Mexico’s pretrial detention system has taken center stage as this year’s 30-day legislative session hits its halfway point and politicians, including Democratic Gov. Michelle Lujan Grisham, gear up for election season.

The debate over who should be held in jail before a judge or jury decides their guilt or innocence comes as the state struggles with violent crime rates higher than the national average. Albuquerque drives much of the brutality—the state’s largest city recorded 117 murders last year, eclipsing the previous grim record of 82, set in 2020.

But other cities have seen far too many victims in recent years as well. That includes Santa Fe, where prosecutors say they’re tracking a 43% increase from 2019 to 2021 in a class of crimes that includes homicide, armed robbery and aggravated battery.

There’s broad agreement among advocates, policymakers and frontline criminal justice system workers that government can and must do more to bolster public safety. Many have even agreed on some proposed fixes: increasing penalties for certain gun crimes, ending the statute of limitations for second-degree murder and spending $100 million to hire more cops.

That’s where the consensus ends.

Lujan Grisham’s signature public safety legislation, House Bill 5, has drawn support from police, some prosecutors and Republicans—and derision from public defenders, data analysts and members of her own party. Rep. Marian Matthews, an Albuquerque Democrat, and others are carrying the bill for the governor.

During its first legislative hearing in the House Government, Elections and Indian Affairs Committee on Jan. 24, Rep. Daymon Ely, D-Corrales, borrowed a phrase from his daughter to call the bill a “hot mess,” then vowed to pick it apart in the House Judiciary Committee.

Opponents say the bill aims to fix an Albuquerque problem with a statewide law that wouldn’t reduce violent crime and is likely unconstitutional, besides. Civil rights lawyers have promised litigation if the proposal becomes law.

Government, Elections and Indian Affairs passed the bill on a 7-2 vote. It’s headed to House Judiciary next, and its path forward appears fraught.

So, what would this bill, which has garnered so many headlines and heated opinions, do? Essentially, it would force defendants accused of certain violent crimes to prove to a judge that they should be allowed to await trial outside of a jail cell. That would mark a massive shift in that burden of proof, which lies with prosecutors under the existing system.

Aggravated assault: 
Aggravated battery: 
Source: First Judicial District Attorney’s Office

If passed and signed into law, HB5 would weaken a huge change in New Mexico’s criminal justice system that was years in the making. For decades, the cash bail system—think of it as money for freedom—had enriched bondsmen, swelled the populations of the state’s county jails and trampled people’s rights.

But in 2014, then-state Supreme Court Justice Charles Daniels authored an opinion saying that the state had set bail too high for a murder defendant named Walter Brown. The seminal ruling admonished judges to use bail only for its original, intended purpose: to ensure people’s appearance in court.

Two years later, 87% of voters pulled the lever for a change to the state constitution that did two things: It etched in stone that no one could be jailed before trial simply because they didn’t have money for a bail bond, and it allowed judges to incarcerate felony defendants pretrial, so long as prosecutors could make a case for it.

That’s what set up the current pretrial detention system.

Bernalillo County District Attorney Raúl Torrez has complained about that system since it took effect and, more recently, has tirelessly pushed the notion that bail reform has created a “revolving door” in the criminal justice system and freed dangerous people he’d tried to jail pretrial, allowing them to commit new, violent crimes.

Torrez penned a scathing, 19-page letter to lawmakers and the governor, challenging a Legislative Finance Committee analysis that found the pretrial detention system was not a primary driver of the violent crime rate in Albuquerque—even as his office failed to respond to numerous inquiries from committee analysts.

Fifth Judicial District Attorney Dianna Luce, a southeastern New Mexico DA who is also president of the New Mexico District Attorneys Association, and other prosecutors have often joined Torrez in advocating for HB5.

First Judicial District Attorney Mary Carmack-Altwies has not been among them. The top prosecutor for Santa Fe, Rio Arriba and Los Alamos counties, who just finished her first year in office, is a progressive—representing a relatively progressive district—who has advocated for and launched programs to emphasize rehabilitation and community justice over incarceration and pressed for police accountability.

Despite not taking a front seat in the HB5 debate, Carmack-Altwies doesn’t believe Torrez and the rest of the bill’s supporters are completely off base. She has some trepidation about the bill’s particulars and takes long pauses when answering questions about it.

But Carmack-Altwies says interpretations of the constitutional amendment reforming the bail system have amounted to an over-correction and left prosecutors, in some cases, unable to protect the community. The system, she says, badly needs changing.

SFR caught up with Carmack-Altwies to discuss the pretrial detention system. This interview has been edited for length and clarity:

SFR: Did you support the constitutional amendment back in 2016, and did you vote for it?

Mary Carmack-Altwies: Yes and yes. I did. And I still do. The idea of getting rid of cash bail, I think, is absolutely necessary. I was a public defender contractor as well as a private attorney, so I really saw how cash bail held people in custody for relatively minor offenses for months and months and months, and that just completely upends people’s lives.

Can you walk me through the other piece of the amendment...the piece giving judges the constitutional ability to hold folks pretrial, without bail, provided that prosecutors were able to make that showing by the standard of clear and convincing evidence. What was your thinking [when you were a public defender contractor] on that piece of the amendment?

I actually supported that as well. There are some people that, even as a defense attorney, I recognized that they’d committed certain crimes or their history was such that they should not be out walking amongst us. And I felt that way when we still had cash bail. Judges sometimes would deny those people bail altogether, or they would set it so high that there was no way they were gonna get out. The problem with that is that it swept up a whole lot of people that didn’t need to be in jail. So, I thought putting the burden on the prosecution instead of on the defendant’s wallet made a lot of sense.

In terms of what you thought the amendment was supposed to do, as a defense lawyer and as a prosecutor, was the system functioning as you thought it would when you cast your ballot?

What I thought I was voting for was that non-violent, low-level offenders—people charged with misdemeanors, people charged with third- and fourth-degree felonies, even some people charged with first- and second-degree felonies that didn’t have criminal histories—would no longer be held, particularly those lower on the socioeconomic ladder, would no longer be held because they couldn’t come up with $50 for a $500 bail...Over my career as a criminal defense attorney for 13 or 14 years, I can’t tell you how many times I had private clients accused of armed robbery, drug trafficking or worse that were out walking the streets—they always got out. But a guy who is picking up shoplifting because he’s trying to feed his family or even someone kind of violent but not super bad, they were always in custody. I really felt like the system was backwards, it was not fair, and it was not working...The way that the amendment has been interpreted, I think what that has done—as a prosecutor, I am all about proving my burdens, and I have no issue with that. But the timelines and the things that we are expected to produce within a very short period of time that we sometimes simply cannot do because the investigation is not done or the police don’t have it finished. And so we’re kind of having to use this crystal ball, and we try to use it very judiciously in the First [Judicial District] and really only try to use it against people that we truly believe should be held in custody and, based on the rules, that we think we can actually win a motion to keep them in custody.

Are some of the requirements under the current scheme unrealistic for even the best law enforcement agencies?

I cannot in any way blame the police for the way the system has evolved and is continuing to evolve. They have to make arrests when they think they have probable cause for a felony charge, but oftentimes they’re making those arrests when they have several cases happening at the same time. So, it takes a few days for them to write their reports, and I do not blame them for that at all...The way the rules have been interpreted, we, prosecutors, have to prove two prongs. One is that the person is dangerous and the other is that no other conditions of release will ensure a person’s appearance in court. The thing is, we almost never have a problem proving prong one. Where we very often lose is on ‘no reasonable conditions,’ because that’s been interpreted—particularly by the Supreme Court, and that has filtered down to our District Court judges—basically to mean almost no one has to be held in jail because there’s GPS or an ankle bracelet or house arrest. So, it’s asking us almost to prove a negative by clear and convincing evidence. That’s where we have the hardest time in the First. And we have a relatively good win rate: We’re at about 58% in Santa Fe…And there are plenty of cases in which, for example, we agree with the defense that GPS is appropriate for someone, particularly after more evidence comes in. When you take those out, our win rate goes up to 65, 70%. I think that the system needs reform because I cannot tell you the amount of resources we have had to switch to intake and pretrial detention in order to handle these. We are basically expected now to have almost everything except for scientific evidence within about [five] days.

Some readers are going to say, ‘Suck it up, buttercup, and you need to have your shit together within that timeframe.’ We talked earlier about the notion of realism—what’s realistic and what isn’t. When you were a criminal defense lawyer would you have thought differently about the realism of a timeline like that, or would you have just been licking your chops?

Oh, as a defense lawyer, I was licking my chops because I can get my people out. Does that mean, as a citizen, my community is safer? Does that mean I felt good about it? No.

Are you losing because the ‘no-reasonable-conditions’ provision is not well defined in the constitution and the case law that’s developed?

You hit the nail on the head. It’s not defined by the statute or even particularly in the court rules. You’re absolutely right to say some people will have the attitude of ‘suck it up, buttercup,’ and we do. And that’s why you haven’t seen me leading the charge on reforming the system. I absolutely agree that this needs to be reformed, it needs to be looked at. The system has turned out to be an unfunded mandate on prosecutors’ offices across the state. There’s not one DA that thinks this is a system that is working all that well. And I would posit that most of our community looks at your paper, looks at the New Mexican and says, ‘how is this person not being held in jail?’ And we have tried. So I would think that most of your readers would think, ‘OK, suck it up, buttercup,’ but also ‘this system is not working if we have first-degree murderers that are walking around when the case against them is pretty darn strong.’

Do you support HB5—is it going to address the concerns you’ve raised during our conversation?

[20-second pause] I absolutely believe that reform to this system needs to happen…There are concerns that I have heard. I watched the House Government, Elections and Indian Affairs Committee, and I’ve seen the criticisms, and I’ve seen the support. I understand both sides of that.

Dianna Luce, the president of the New Mexico District Attorneys Association, told the Senate Judiciary Committee that she has the full support of all 14 elected DAs in the state for HB5. Is that true for you?

Yes, the elected district attorneys, all of us, voted to support HB5.

Are you confident that the data show that the pretrial detention system is causing crime?

The data that’s being used comes from the [association of district attorneys] and that system is not meant as a data repository...Our office is working to purchase software to actually mine our data to see which programs are working and which aren’t...Raúl’s argument that the criticism is based on flawed data is right. It is...I cannot say what is causing the increase in crime. We are seeing it here in Santa Fe. We pulled stats the other day, and we’re looking at about a 43% increase in violent crimes. That’s scary, and we are also seeing that nationwide. Is it just the pretrial detention system in New Mexico or in Albuquerque? No. Clearly not. But I do know that from our experience in this jurisdiction that we’ve got people charged with the most heinous crimes, including murder, that we can’t hold in jail.

Interesting enough that the entire movement behind the bail reform amendment was built around a murder case, the Walter Brown case.

It’s a really interesting constitutional and societal debate that’s happening. But my perspective has changed as a prosecutor. I have victims here in Santa Fe who are leaving because we can’t get their abusers held—or people that are calling us and saying, ‘That guy who pulled a gun on me last week and stole my car, I just saw him at Blake’s.’ And we’re like, ‘Yeah, we tried.’ There are constitutional issues that I fully and totally support, and I’m not saying that we have the solutions, but reform is absolutely needed.

Do you believe that the pretrial detention system is among the drivers of those increased violent crime rates you mentioned in your district?

I do think it is among the drivers, yes.

If it is among the drivers, would HB5, as it’s written, reduce its impact in your district?

[30-second pause] Every tool that we can get in our arsenal to combat this is helpful.

If HB5 is passed and signed into law, do you anticipate an increase in the number of pretrial detention motions that you would file?

No, I really don’t. We’ve always tried to be very judicious and discretionary in what we file. We recognize that defendants have constitutional rights, and one of those is to live under conditions of release if there are reasonable ones. We review every single case, every single day and we try to be very discerning about who we file on.

Do you anticipate that you would win more of those motions if HB5 becomes law?

I think that our rate of wins would increase.

Do you expect that you’re gonna get sued if this gets passed into law and you proceed under the new statute and win one of these hearings? Do you think there are going to be constitutional challenges?

Oh, yeah. Because every defendant, if they’re held, they have an automatic right of appeal. A lot of them appeal under the current system when they’re held. So, sure. And it’ll go up to the Supreme Court, and the Supreme Court will tell us whether it’s constitutional.

Do you have an opinion whether this statute would be constitutional?

I think Raúl and the legislators have put a lot of thought into trying to make it as constitutional as they can.

Even under this new scheme, if it’s passed into law, wouldn’t those quick, five-day timelines to get ready for a pretrial detention hearing you talked about earlier, still be a problem?

Absolutely. To me, this reform would be a step in the right direction. I don’t know that it fixes all of the ills of the system.

Regardless of how you feel about the intricacies of HB5, do you welcome the debate around this issue?

I think that most people would agree that the system as it has been interpreted and written into case law is flawed. I’m not saying that I know or that anyone knows the lightning bolt that will fix it. So, having a debate about it and talking about the constitutional issues, which are so, so, so important—but also talking about the victims of these crimes who do not feel protected by the system is also so, so, so important. And prosecutors are trying their best to work under the current system. It’s working a little better for us here in Santa Fe than it is down in Albuquerque. But that doesn’t mean that it’s working great in Santa Fe or in Clovis or in Doña Ana County.

It sounds like you do have some concerns, some trepidation and like you have thought quite a bit about how to change a system you see as not working entirely as planned, particularly for the entire state. Do I have that right?

Yes, you do. Since the system came into being and with every new case that comes out, the frustration level keeps going up across the state for judges and prosecutors and police and certainly for victims...I’ve spent a lot of time thinking about this. I was a practitioner in District Court around the state for 13 years, and I want to see this system changed. I am sometimes frustrated by the loudest voices in the debate that maybe overshadow other potentially good solutions, but I also know that happens in every debate. But the best thing is we are shining a light on it and seeking solutions.

In and Out of Jail

First Judicial District Attorney Mary Carmack-Altwies points to a recent case in her district as an example of what she calls a “system that needs reform.” Prosecutors believed they had strong evidence that the defendant would pose a danger to the community if released before trial on violent felony charges—and that no conditions of release would protect others or ensure the man came back to court. (Those are the two things prosecutors must prove to have someone locked up before trial.) The judge disagreed. Here’s how the case played out:

Erick Martinez, 44, was arrested in January 2021 on suspicion of aggravated stalking, burglary and other charges after police say he broke into his 74-year-old mother’s Española home and disabled her vehicle. Prosecutors sought to have Martinez locked up pending trial, but on Jan. 28, 2021, First Judicial District Judge Mary Marlowe Sommer denied their motion, ruling that they hadn’t proven their burden to show Martinez was dangerous. Three times during the next seven months, Martinez was arrested on suspicion of violating his conditions of release; twice, he was released and reinstated to electronic monitoring. In July, he again allegedly violated his conditions, and a warrant was issued for his arrest. On either Aug. 1 or Aug. 2, Martinez allegedly beat his mother to death in her home. He is awaiting trial on first-degree murder and other charges.

A change to the New Mexico Constitution approved by voters in 2016 allowed prosecutors to petition judges to hold felony defendants in jail until their trials. Prior to 2021, the First Judicial District Attorney’s Office, which includes Santa Fe, used an older case management system that didn’t precisely track how pretrial detention motions were resolved. Last year’s statistics are far more detailed. Here’s a look at the numbers:
2018: 42 motions filed; 28 granted
2019: 88 motions filed; 48 granted
2020: 83 motions filed; 38 granted (The DA’s office agreed to home confinement in many of these cases due to COVID-19)
2021:125 motions filed, of which 58 were granted, 
49 were denied, 15 were dismissed or withdrawn by prosecutors, and 3 are either pending or have no status

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