We blogged Monday that the pre-session predictors who were pessimistic about any major gun control legislation passing this session are being put to the test but the crystal ball gazers have been proven right in forecasting that a major crime bill that has been repeatedly introduced at the Roundhouse would be dead on arrival. 

On a 5 to 4 vote Monday the Senate Health and Public Affairs Committee tabled SB122, the now well-known pretrial detention bill or "rebuttal presumption" as it is also known. 

The early defeat in the 30 day session was not a big surprise as the measure has been repeatedly and unsuccessfully deployed as a populist battle cry by politicians and law enforcement officials from the Governor on down. But MLG pushed especially hard this time by making it a centerpiece of her nearly all crime all the time session agenda. She took note of the failure which was made possible by opposition from her own party:

 I am dismayed that our Legislature has once again refused to undertake an honest, robust debate on the state of our pretrial release system. Crime is out of control and something needs to change. We have invested hundreds of millions of dollars in behavioral health services, education, economic opportunity – critical components that ensure every New Mexican gets a fair shake. However, I will not stand by as repeat violent offenders walk in and out of our courthouses without consequence. A rebuttable presumption is not an extreme policy, and ours is modeled after federal law that has been in place for decades. It is time for the Legislature and the public to stand up and give this proposal the robust debate that New Mexicans agree it deserves.

(Statement of Senate Republican Whip Craig Brandt here.)

It's not as though the bill's defeat--yet again--is going to unleash a crime wave. From a 2021 UNM research report: 

Amid debate over New Mexico’s system of releasing felony defendants, University of New Mexico research indicates that just under 5 percent of Albuquerque-area defendants awaiting trial commit violent crimes while free from jail. Findings from the university’s Institute for Social Research’s analysis of more than 10,000 felony cases in Bernalillo County also included that less than 1 percent of people on pretrial release were arrested for a first-degree felony while on pretrial release. 

A rate of "under 5 percent" is nothing to celebrate but defeating a measure that has proven a legislative time waster, a mask for political cover and that experts say would probably be found unconstitutional is no tragedy. From the legislative analysis:

In order to subject a presumed-innocent defendant to pretrial detention, the state is required to prove “by clear and convincing evidence that (1) the defendant poses a future threat to others or the community, and (2) no conditions of release will reasonably protect the safety of another person or the community.” Agency analysis expressed concern that, if SB122 should be enacted, it would infringe on a person’s constitutional rights, place the constitutional burden on the defendant to prove the negative, and result in extensive litigation over SB122 affects on pretrial detention.

THE REAL PROBLEM?

The Governor states:

We have invested hundreds of millions of dollars in behavioral health services, education, economic opportunity – critical components that ensure every New Mexican gets a fair shake. 

But the state is far from effectively addressing the behavioral health crisis that has been a major factor in creating thousands of new criminals. Take a look at the list of publicly recorded drug overdoses in the Española area from October thru December. The list includes only those going through Española Central Dispatch--not those that did not require a public safety response:

Oct. 6: State Road 215 in El Rito; Oct. 9: Roosevelt Streer and County Road 87 in Chimayó; Oct. 10: Fairview Lane and North Riverside Drive; Oct. 14: Private Drive 1605 in Medanales; Oct. 16: Walmart; Oct. 18: County Road 41 in Alcalde;Oct. 21: Lowe’s Home Improvement; Oct. 24: La Joya Street, North Paseo de Oñate and Calle del Rio; Oct. 25: Walmart; Oct. 26: Starbucks; Oct. 27: Indian Way; Oct. 28: Dollar Tree; Nov. 1: N.M. Highway 17; Nov. 2: County Road 435 in Velarde; Nov. 4: Valdez Park; Nov. 10: U.S. 84 in Abiquiú; Nov. 11: Little Caesar’s, Walmart and Walgreens; Nov. 14: Private Drive 1626 in Abiquiú; Nov. 17: Española Pathways Shelter; Nov. 19: Calle del Rio; Nov. 21: Chamita; Nov. 23: Rio del Oso Street; Nov. 29: Private Drive 1504 in Hernandez; Dec. 3: Hernandez County Road 1535 in Hernandez; Dec. 4: Española Pathways Shelter; Dec. 5: Calle del Sol and Washington Federal; Dec. 6: East Shadowood Lane and Calle Redonda; Dec. 8: Freddy’s Frozen Custard; Dec. 10: Calle del Sol and Rio Arriba County Detention Center; Dec. 11: Kennedy Loop; Dec. 12: Park and Ride; Dec. 13: Ohkay Casino; Dec. 16: Terrace Avenue in Chama; Dec. 17: Española Pathways Shelter and CR 87 in Chimayó; Dec. 18: Española Pathways Shelter and County Road 1 in Hernandez; Dec. 19: Española Pathways Shelter, Calle del Rio and Milagro Village Mobile Home Park; Dec. 20: Española Pathways Shelter, JGN Lane and Calle de los Yuccas; Dec. 21: Calle del Sol, Calle Redonda and County Road 89 in Chimayó; Dec. 23: Española Pathways Shelte and Private Drive 1511 in Hernandez; Dec. 28: Walmart; Dec. 30: Calle Redonda

And that's just the Española area where the city population is only 10,500. There's the New Mexico crime problem--a fentanyl-fueled inferno. 

Pretrial detention, increased penalties for 2nd degree murder and a cache of other well-meaning crime proposals at this crime heavy legislative session aren't going to make a difference if the fundamental problem continues to go unaddressed. 

AN AMUSED SENATOR

Staying on the the crime beat we circle back to the Monday blog. Speculation was cited there that moderate Dem and Senate Judiciary Committee Chairman Joe Cervantes is perhaps siding with progressives in favor of a 14 day waiting period for gun purchases to be approved because opposing the bill might result in a primary challenge. But he says:

Joe, I was amused by the blog and speculation about where I am on gun laws. Recall I wrote and passed the laws on red flag, and closing gun show loopholes in the past. But recall also that immediately after the Governor issued a public health order banning the carrying of guns on public property in Bernalillo County, I called for her to rescind those orders. I believe I've been the only Dem legislator to do so to date. And of course the courts immediately struck down her unconstitutional orders

If  anyone wants to know my position, no speculation is necessary. I know the Constitution and the law very well, and I've taken an oath to uphold both. I'm supporting solutions that will be lawful, will have a true if small impact, and am not about to waste my time chasing press headlines. I'm a lifetime gun owner and concealed carry permit holder, and know as a lawful owner it's up to people like me to be the solution. 

The 14 day waiting period is expected to easily pass the House. In the Senate it is expected to be more difficult but Cervantes' support is seen as a breakthrough for possible passage.

Cervantes has served in the legislature since 2001, first as a representative and since 2013 as a senator.

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