After a rancorous and wide-ranging debate, state senators voted 29-9 Tuesday for a proposed state constitutional amendment that would allow judges to deny bail to defendants they consider dangerous and to release from jail nonviolent prisoners who simply lack the money to post bail.
Seven Republicans joined 22 Democrats to move the proposal to the House of Representatives. All nine votes against the measure were by Republicans.
One member who opposed it, Sen. Bill Sharer, R-Farmington, criticized state Supreme Court Justice Charles Daniels for appearing regularly at the Capitol to testify for the constitutional amendment.
“Laws ought to be made by us. We should decide this,” Sharer said, arguing that a member of the judicial branch should have no part in the Legislature’s debate.
Daniels sat by himself in the Senate gallery as Sharer complained about his involvement. Daniels has called this proposal the single most important criminal justice reform in his eight years on the bench.
Sen. Bill Burt, R-Alamogordo, attacked the part of the amendment that says a defendant should not be detained solely because he or she cannot afford bail.
Burt said people arrested on suspicion of crimes are guilty nine times in 10. He also said it’s “not a bad thing” for defendants, especially young ones, to sit in jail while awaiting a trial or disposition of the charges against them.
“If we make it easy for young criminals, whether they get a hand slap or not, they will go on to bigger things,” Burt said.
Burt’s statements brought a rebuke from Sen. Cisco McSorley, D-Albuquerque. “Jails are criminal colleges. They’re not rehabilitation centers,” McSorley said.
Like McSorley, the majority of senators said they did not want to see people incarcerated only because they lack the money to make bail.
Sen. Peter Wirth, D-Santa Fe, sponsor of the amendment, said jailing defendants before trial solely because they can’t afford bail violates the equal protection provision of the Constitution. A defendant of means in a low-level case can post bail and get of jail, Wirth said. A low-income person arrested for the same crime ends up staying in jail, and that costs the defendant and the taxpayers, Wirth said.
Sen. Lisa Torraco, R-Albuquerque, asked if judges already have the power to set free indigent defendants who pose no risk to anyone. Wirth said they do, but the evidence is that they aren’t doing so. He said county governments have collectively reported that 39 percent of the people in their jails are being held because they can’t make bail, not because they’re dangerous.
Torraco asked how approving the constitutional amendment would change anything, since judges aren’t exercising the power they already have.
Wirth said the constitutional amendment “creates a bright-line statement” that lack of financial resources cannot be used as the sole reason to keep a defendant in jail.
Torraco voted for the bill, even after supporting a floor amendment to leave intact the no-bail provision for violent defendants and removing the section about low-income ones.
Sen. Mark Moores, R-Albuquerque, sponsored the attempt to reduce the scope of the proposal.
“I do think this is a logroll constitutional amendment,” Moores said, meaning two different issues are packaged in one ballot question. “We shouldn’t be muddling this issue.”
Wirth countered that the amendment is proper because both parts of it deal with bail and money.
Moores’ attempt to remove the part about indigent defendants from the constitutional amendment failed on 26-14 vote.
One senator, Democrat Joseph Cervantes of Las Cruces, declined to vote on the bail proposal, saying he had a conflict because he has a case before the state Supreme Court.
Two other senators, Richard Martinez, D-Española, and Lee Cotter, R-Las Cruces, walked off the Senate floor before the final vote. The Democrats’ whip, Sen. Michael Padilla, asked that Martinez be “excused” and the Senate record listed him that way. Cotter was marked as “absent.”