Fiscal impact reports (FIRs) are prepared by the Legislative Finance Committee (LFC) for standing finance
committees of the NM Legislature. The LFC does not assume responsibility for the accuracy of these reports
if they are used for other purposes.
Current and previously issued FIRs are available on the NM Legislative Website (www.nmlegis.gov) and may
also be obtained from the LFC in Suite 101 of the State Capitol Building North.

FISCAL

SPONSOR

ORIGINAL DATE
LAST UPDATED

Wirth/Maestas

SHORT TITLE

IMPACT

REPORT
1/27/16
2/16/16

Denial of Bail for Certain Felonies, CA

HB
SB

ANALYST

SJR1/aHRPAC
Downs

ESTIMATED ADDITIONAL OPERATING BUDGET IMPACT (dollars in thousands)
FY17

Total

($17,900.0)

FY19

3 Year
Total Cost

Recurring or
Nonrecurring

($18,000.0)

($53,900.0)

Recurring

FY18

($18,000.0)

Fund
Affected
General
Fund and
County
Detention
Fund*

(Parenthesis ( ) Indicate Expenditure Decreases)
*An indeterminate amount of savings is allocated to the counties associated with county-funded detention centers.

Relates to House Joint Resolutions 13 and 20
SOURCES OF INFORMATION
LFC Files
Responses Received From
Administrative Office of the Courts (AOC)
Judicial Standards Commission (JSC)
Administrative Office of the District Attorneys (AODA)
Public Defender Department (PDD)
Attorney General’s Office (AGO)
Department of Public Safety (DPS)
Secretary of State (SOS)
Commercial Bail Bond Industry
Responses not received from
Association of Counties
Municipal League
SUMMARY
Synopsis of HRPAC Amendment
The House Regulatory and Public Affairs Committee amendment to Senate Joint Resolution 1
adds more detail to who cannot be detained on unaffordable bail by adding ‘[defendants] who do
not pose a flight risk’ to the end of the title, line 15 on page 1. On page 2, the amendment makes
changes to the paragraph starting on line 20 to expand what formerly just stated no one can be

 Senate Joint Resolution 1/aHRPAC – Page 2

held if he or she is not ‘a danger,’ to no one who is not ‘detainable on grounds of dangerousness
nor a flight risk in the absence of bond.’ At the end of that paragraph, the amendment says that
someone who is not a danger or a flight risk and who has financial inability to post a bond has to
file a motion requesting relief from payment on which the court shall ‘rule in an expedited
manner.’
Synopsis of Original Bill
Senate Joint Resolution 1 purposes an amendment to Article 2, Section 13 of the Constitution of
New Mexico to allow courts of record to deny bail to a defendant charged with a felony when a
prosecutor requests a hearing to deny bail and provides clear and convincing evidence that the
defendant will not come back to court, and is a danger to the community.
In addition to the provision to deny bail to dangerous defendants, the amendment would also
allow courts to release defendants without bail if there is no evidence that the defendant is
dangerous or a flight risk, preventing detention that hinges on income. The amendment would be
put on the ballot in the next general election for approval by the voters.
FISCAL IMPLICATIONS
There are three areas of fiscal impact: fewer nondangerous defendants in custody, more
dangerous defendants in custody, and costs associated with publications for the election. Savings
from fewer nondangerous defendants in custody amount to $19 million per year. Costs
associated with detaining dangerous defendants are estimated to be $967 thousand. By
subtracting $967 thousand from $19 million it can be estimated the constitutional amendment
will save $18 million annually. The costs associated with publishing the constitutional
amendment for balloting purposes are estimated by the secretary of state to be $104 thousand,
reducing the savings to $17.9 million for FY17.
Each area of fiscal impact is detailed below:
1. Fewer nondangerous defendants in custody
According to the New Mexico Sentencing Commission, the average cost per day to house an
inmate in a detention center is $72.03. The commission also reported that the average time in jail
pretrial for a misdemeanor is 55 days and that the average time in jail pretrial for a felony is 147
days. It can be estimated by multiplying the average days in jail by the average cost per day that
every defendant released pending trial would save $3,962 for a misdemeanor and $10,588 for a
felony.
AOC estimated that the constitutional amendment would reduce the population of those detained
pretrial by 10 percent, based on population reduction in other states that have enacted similar
legislation. Statewide there is an average daily population of 7,305. By multiplying 10 percent of
the daily population, 730, by the average cost per day, it can be estimated that releasing 10% of
the pretrial jail population will save $53 thousand per day and $19 million per year.

 Senate Joint Resolution 1/aHRPAC – Page 3

2. More dangerous defendants in custody
AOC reported that between FY12 and FY14 there was an average of 85 defendants per year who
were threats to the community but we able to pay a bond of $10 thousand or more and be
released. Additionally, AOC reported in those three years, 19 dangerous defendants were able to
pay bonds of $100 thousand or more and secure release.
This amendment to the constitution would presumably allow those defendants to be detained
without any bail. By multiplying the New Mexico Sentencing Commission’s average cost of
detention per felon ($10.6 thousand) by 274 (AOC’s estimated 85 defendants per year with a $10
thousand bond plus the 19 defendants with a $100 thousand bonds), it can be estimated that the
cost of implementing HJR13 will be at least $2.9 million in detention expenses for the counties
over the course of three years, or $967 thousand per year.
3. Cost of ballots
The Secretary of State estimates the cost of placing a constitutional amendment on the ballot to
be $104 thousand based on 2010 actual expenditures. This includes all necessary printing and
advertizing. The next general election is in FY17.
SIGNIFICANT ISSUES
The Public Defender Department stated that appeals on rulings to deny bail will probably
increase, resulting in possible need to hire attorneys who are experienced in the appeals process.
According to PDD, the midpoint salary for an associate attorney is $93.1 thousand, and for a trial
attorney is $103.9 thousand. The Attorney General’s Office and the Administrative Office of the
District Attorney indicated similar potential need for additional attorneys, stating that the
discretion to deny bail rests entirely on the prosecution, since it must request a dangerousness
hearing. AOC reported that any additional hearings would fit within the existing structure and
would not place an additional burden on the courts or criminal justice system.
Pretrial services are funded by a mixture of state and county funds in courts statewide. AOC
contended that the savings from releasing defendants pretrial will compensate for any increases
in pretrial services funding.
Although no risk assessment is indicated in the language of the amendment, according to AOC,
the Second Judicial District Court and the Bernalillo County Metropolitan Court are currently
doing a pilot run of a risk assessment instrument to determine pretrial release conditions. The
assessment includes flight risk, community ties, employment, criminal history, etc. If the pilot is
a success AOC will look into the use of an advanced risk assessment developed by the Laura and
John Arnold Foundation. The instrument is inexpensive to use, but could require additional staff
and supplies in the future.
According to AOC, state and county savings are not the most significant benefits that can be
gained from the release of nondangerous defendants. Studies show that the less time a person
spends in jail, the less likely he or she is to reoffend. Releasing nondangerous defendants without
bail will result is lower crime recidivism rates, which not only means fewer costs, but more
safety for the community.

 Senate Joint Resolution 1/aHRPAC – Page 4

The Attorney General’s Office (AGO) stated that the amendment removes the ability for courts
to grant release without bail to defendants who do not pose a danger or flight risk because the
language stating that an individual shall not be detained solely on financial inability is in a
portion of the resolution discussing what is the appropriate bail, suggesting that courts can set
unaffordable bails. The AGO also expressed concern that the motion made by the defendant can
only be made if the defendant has already been deemed nondangerous and not a flight risk.
Conversely, representatives from the commercial bail bond industry added that there is potential
for additional costs associated with SJR 1, as cited in a 2013 study called Pretrial Release
Mechanisms in Dallas County, Texas by Robert Morris, UT Dallas. The study found that
defendants who secured release via a commercial bond agent were more likely to appear for trial
than by any other mechanism. The report also stated, “Overall, analyses based on the data
explored here suggests that commercial bonds were the most successful in terms of defendant
appearance rates, followed by attorney bonds, cash bonds, and pretrial services releases.”
The same study cited a cost of $1.8 thousand per failure to appear, which comes from a 1997
study of failures to appear in Los Angeles. Using this cost, the study deduced that commercial
bonds saved $7.6 million ($350 thousand for every 1000 defendants) for felonies, and $3.5
million ($160 thousand for every 1000 defendants) for misdemeanors, as compared to other
types of bonds and pretrial release, in Dallas County.
According to the bail bond industry, New Jersey adopted similar bail reform in 2014. The New
Jersey Association of Counties estimates that it will cost one county $5 million to implement a
new pretrial services program, which includes renovations and construction to the court house
for the new pretrial services unit, and a new video conferencing area, as well as 15 more
prosecutors and detectives. The counties are in favor of the reform, but are reaching out to the
state’s legislature for funding assistance. Similarly, the commercial bonding industry reported
that the bail reform adopted in Washington DC costs $60 million annually.

PERFORMANCE IMPLICATIONS
The Administrative Office of the District Attorneys stipulated that bail hearings would increase
the workload for prosecutors due to the requirement of clear and convincing evidence indicating
higher burden of proof and need to gather and present notices of arrest and collected evidence
within days or even hours of the arrest. Though the additional hearings may affect performance,
AODA stated that a focus on danger and public safety is more practical than only considering
prior felonies.
RELATIONSHIP, CONFLICT
Senate Joint Resolution 1 relates to House Joint Resolution 13, which also purposes an
amendment to Article 2, Section 13 of the Constitution of New Mexico to allow courts of record
to deny bail to a defendant charged with a felony when a prosecutor requests a hearing to deny
bail and provides clear and convincing evidence that the defendant will not come back to court,
and is a danger to the community. However, HJR13 does not include any provisions for those
defendants who may not be able to afford bail.

 Senate Joint Resolution 1/aHRPAC – Page 5

SJR 1 also relates to HJR 20, which would to allow judges to deny bail when a defendant is
charged with an act of violence or sexual assault in addition to the current provision that bail
may denied when a defendant is charged with a capital offense or a violent felony, and allows
judges to consider the seriousness of the offense, the previous criminal record, and the
probability of the defendant reappearing when fixing the amount of bail and also allows judges
to release defendants on recognizance without setting a bail. There is no explicit provision in
HJR 20 to allow courts to release a defendant in the case of financial inability to post a bond.
According to the AGO, the current language of the amendment states that without a
dangerousness hearing, the court will be required to release the defendant, conflicting with Rules
of Criminal Procedure for District Court, 5-401 NMRA which outlines considerations for
determining bail. The amendment allows courts to release those who are too poor to pay their
bond seemingly without regard to existing guideline, according to the AGO. Additionally, in
reference to the HRPAC amendments, the AGO stated that if a defendant can only make a
motion and be released without bond due to inability to pay once he or she has been determined
nondangerous and not a flight risk, there is conflict with Rules of Criminal Procedure for District
Court 5-401(G) NMRA which entitles those who are held for more than 24 hours on
unaffordable bail to a hearing to reset the bail amount.
JD/al/jo/al/jle/jo