Unconstitutional Legislation in New Mexico
I LOVE COMPANIES THAT GIVE BACK. I AGREE / I DISAGREE.
Choose one.
The question above pops onto my screen each time that I visit an online clothing website, with the option to click a button demonstrating that I either agree or disagree. Everyone loves companies that give back to the community. What heartless soul could possibly disagree that they love companies that give back? The act of clicking I DISAGREE basically solidifies one as a horrible human, a social pariah, the problem rather than the solution.
House Bill 557 is funneling its way through the Albuquerque, New Mexico legislative session of 2015. This Bill proposes to create a law that statutorily denies anyone that is charged with either Aggravated Battery Against a Household Member, or Aggravated DWI from being released by a detention center on their own personal recognizance. In other words, anyone charged with either of these crimes must always post a bond at the detention center.
House Bill 557 is the equivalent of the question I LOVE COMPANIES THAT GIVE BACK.
Who in their right mind would click I DISAGREE for a Bill that proposes to increase the penalties for a person that is charged with Aggravated Battery Against a House Hold Member or Aggravated DWI? What member of the New Mexico legislature could be so cold and detached from the heartbeat of Albuquerque, New Mexico by openly standing up before their peers and denouncing this wonderful bill, thereby voicing their support for either of these crimes?
The problem with House Bill 557 is that it presents a black and white answer to an issue with an array of colors. The other problem with House Bill 557 is that the proposal is an unconstitutional attempt to handcuff detention centers into forcing unnecessary and excessive bail.
The purpose of bail is to ensure that a person does not flee the jurisdiction before one’s case proceeds to trial. Bail is not meant as a punishment. Bail is meant to secure the appearance of the accused. Simply put, some people do not require bail to ensure that they will appear for trial and this bill is simply a means to punish individuals that have been charged – but are presumed innocent – of violating either crime.
Releasing one on their own recognizance (“ROR”) is the act of releasing one from detention without bail. Defendants that are ROR are only required to sign a written promise that they will appear in court at a later date. No bail has to be paid, either to the court or to a bail bonds. Nevertheless, all other aspects of bail remain the same. In other words, a judge can place conditions on a ROR defendant (such as to check in regularly with a probation officer, have no contact with the alleged victim, abstain from the use of drugs or alcohol, etc.) and order the arrest of a defendant who fails to show up in court when required.
The Eighth Amendment of the United States Constitution and Article II Section 13 of the New Mexico Constitution prohibit excessive bail, fines, or cruel and unusual punishment. Requiring an entire group of individuals charged with a specific crime to post bail, without first determining the reasonableness and need for such a bail is unreasonable, excessive and therefore unconstitutional.
Conditions of release, including bail, are constitutional issues that must be reasonable under all of the circumstances. Judge’s consider a wide variety of factors when determining if bail is appropriate including one’s past record, longtime residence in the community, support of family members and employment. The judge – not the legislature – must consider these factors when determining if bail is appropriate under these circumstances.
The worst part about House Bill 557 is the fact that the bill makes zero attempt to provide data, statistics – or even an unsupported hint or suggestion – that anyone charged with either of the named crimes are more likely to skip trial, relative to any other criminal offense, therefore warranting the outright denial of ROR.
Take Aggravated DWI, for instance. An Aggravated DWI – 1st offense – is a highly sensationalized traffic misdemeanor that is punishable by the maximum sentence of 90 days incarceration. Other traffic misdemeanors that are less glorified, but are punishable by the same maximum penalties include: (1) Careless Driving, (2) Expired License, (3) Headlights (off), (4) No License Plate, (5) No Registration, (6) Tail Light.
Ultimately, House Bill 557 is an unconstitutional bill that should be cut off in its infancy before blossoming into law. In the event that the bill makes its way through the legislative process, ultimately transforming into a law, that very law could and should be struck down by the District Court as unconstitutional.
