Legal expert takes a look at bill’s constitutional concerns

SANTA FE, N.M. – A House bill that aims to flip the burden during pretrial detention hearings from the prosecution, to the defendant, stalled Wednesday at the Roundhouse.

Before its sponsor tabled it, committee members brought up several concerns, including whether it’s constitutional. KOB 4 brought the question of its legality to an expert for some insight.

Concerns came from four members of the House Government, Elections, and Indian Affairs Committee – they included questions about the bill’s legality.

Rep. Greg Nibert made a point about New Mexican voters needing to be involved, like they were in the initial bail reform vote.

"The citizens of New Mexico changed the constitution, and so in my view the legislative process is somewhat constrained in this regard because of what the people of New Mexico did in 2016," said Nibert.

The bill’s author tabled it Wednesday morning.

"As I’m listening to the conversation and the questions and so forth, I think there’s a number of issues that have been raised that require some additional thought," said Rep. Marian Matthews.

Does this mean the bill is dead? UNM Law Professor Joshua Kastenberg says not quite.

"My sense of this bill is unless it’s re-written, it’s constitutionally problematic. Not because of the way it was generated, or proposed, but because it does in fact shift a burden onto the defendant," said Kastenberg.

He believes that shift of burden in itself is problematic.

"Although the last section of House Bill 5 states that no burden has shifted to a suspect, or a defendant, in point of fact the bill does just that, it shifts a burden," Kastenberg said. "In the world of criminal law, the burden is always supposed to be on the government."

Kastenberg says it could be an easy fix if the sponsors add some new language.

"I think you have a section that’s added in there that states that the prosecution must produce some evidence that there’s a likelihood of future dangerousness to the community or a flight risk."

He thinks lawmakers have plenty of time to re-work it and get it right for the sake of the public and the law.

"It’s a reasonable idea and you know the frustration of the people is very real I don’t discount that. But the people of the state deserve a bill that will withstand the courts too."

Once the bill is re-worked, Matthews can bring it back to the committee, which is scheduled to meet again Friday, Jan. 28.

Track HB 5 during the legislative session.