Like other jurisdictions that have abolished the death penalty, New Mexico no longer has true capital offenses, where the potential of execution is still a legal punishment. The state has also undertaken cash bail reforms by enacting a constitutional amendment that seeks to detain individuals who pose a risk of flight or dangerousness, while never detaining anyone simply because they are financially incapable of posting bond. But, unlike many of the jurisdictions that have ceased the use of the death penalty and shifted away from cash bail, New Mexico approaches the pretrial release process uniformly, making no distinctions between felony offenses. During pretrial release proceedings, presumptions that certain classes of offenders pose a flight risk or a danger to the community, particularly those charged with premeditated murder, are widely accepted and have been deemed constitutionally sound by the United States Supreme Court. As of 2018, New Mexico recognizes no presumptions that can be used in pretrial release determinations against those charged with first-degree murder, which involves a willful and deliberate premediated killing. New Mexico’s failure to distinguish first-degree murder from other felony offenses has resulted in calls by the public and lawmakers to repeal the state’s bail reform amendment due to public safety concerns. This Note argues that in order for New Mexico’s cash bail reforms to survive, the state should employ rebuttable presumptions of flight-risk or dangerousness against defendants charged with first-degree murder in pretrial detention hearings. This change would address the concerns of lawmakers and residents, and put New Mexico more in line with other bail reform jurisdictions.


PDF updated November 10, 2020

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