                                                                  I attest to the accuracy and
                                                                    integrity of this document
                                                                     New Mexico Compilation
                                                                    Commission, Santa Fe, NM
                                                                   '00'04- 15:21:05 2018.06.20

         IN THE SUPREME COURT OF THE STATE OF NEW MEXICO

Opinion Number: 2018-NMSC-030

Filing Date: April 23, 2018

Docket No. S-1-SC-36395

STATE OF NEW MEXICO,

       Plaintiff-Appellee,

v.

MUHAMMAD AMEER,

       Defendant-Appellant.

APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY
Christina P. Argyres and Charles W. Brown, District Judges

Bennett J. Baur, Chief Public Defender
Scott Wisniewski, Assistant Public Defender
Matthias Swonger, Assistant Public Defender
Albuquerque, NM

for Appellant

Hector H. Balderas, Attorney General
Maris Veidemanis, Assistant Attorney General
Santa Fe, NM

for Appellee

                                       OPINION

DANIELS, Justice.

{1}     Since New Mexico became a state over a hundred years ago, Article II, Section 13
of the New Mexico Constitution has contained a clause providing that “[a]ll persons shall,
before conviction, be bailable by sufficient sureties, except for capital offenses when the
proof is evident or the presumption great . . . .”

{2}    In 2009, the legislative and executive branches statutorily abolished the penalty of

                                            1
capital punishment for first-degree murder, the only remaining New Mexico crime carrying
a potential death sentence, for all offenses committed after July 1, 2009. See NMSA 1978,
§ 31-18-14 (2009); NMSA 1978 § 31-18-23 (2009); NMSA 1978, § 31-20A-2 (2009).

{3}     Defendant Muhammad Ameer is charged with first-degree murder committed on or
after July 1, 2009. In this appeal from a district court order applying the capital offense
exception to the constitutional right to bail and denying Defendant any form of pretrial
release, we hold that first-degree murder is not currently a constitutionally defined capital
offense in New Mexico that would authorize a judge to categorically deny release pending
trial.

{4}     Following briefing and oral argument, we issued a bench ruling and written order
reversing the district court’s detention order that had been based solely on the capital offense
exception. See Order, State v. Ameer, S-1-SC-36395 (May 8, 2017). In the same order we
remanded with instructions to the district court to consider the State’s unaddressed request
for detention under the 2016 amendment to Article II, Section 13 of the New Mexico
Constitution, allowing courts a new and broader evidence-based authority to deny pretrial
release for any felony defendant “if the prosecuting authority . . . proves by clear and
convincing evidence that no release conditions will reasonably protect the safety of any other
person or the community.” N.M. Const. art. II, § 13. We also advised that this precedential
opinion would follow.

I.     BACKGROUND

{5}     Defendant was indicted for, among other offenses, first-degree murder in violation
of NMSA 1978, Section 30-2-1(A) (1994), an offense that had been statutorily defined as
a “capital felony” before capital punishment was abolished in July 2009 and which is still
statutorily referred to by that term, although it now carries a maximum penalty of life
imprisonment instead of a death sentence for offenses committed on or after July 1, 2009.
See § 31-20A-2. The date of Defendant’s alleged offense was March 19, 2017, and his
alleged crime therefore cannot result in capital punishment.

{6}     The State moved to detain Defendant pending trial under the new detention authority
provided by the November 2016 amendment to Article II, Section 13 in felony cases where
“no release conditions will reasonably protect the safety” of others. N.M. Const. art. II, § 13
(amendment effective Nov. 8, 2016). But instead of relying on that new authority, the district
court ordered Defendant detained on the basis of the older capital offense exception to the
constitutional right to pretrial release.

{7}    Defendant appealed the pretrial detention order to this Court.

II.    DISCUSSION

A.      Jurisdiction and Standard of Review

                                               2
{8}     The New Mexico Supreme Court is vested with exclusive jurisdiction over
interlocutory appeals in criminal cases where a defendant faces possible life imprisonment
or execution. State v. Brown, 2014-NMSC-038, ¶ 10, 338 P.3d 1276 (citing State v.
Smallwood, 2007-NMSC-005, ¶ 11, 141 N.M. 178, 152 P.3d 821); see also N.M. Const. art.
VI, § 2 (granting this Court exclusive jurisdiction over appeals from final district court
judgments “imposing a sentence of death or life imprisonment”); NMSA 1978, §
39-3-3(A)(2) (1972) (permitting an appeal from a district court “order denying relief on a
petition to review conditions of release”); Rule 12-204 NMRA (providing procedures for
interlocutory appeals from orders denying release, effective for all cases pending or filed on
or after July 1, 2017).

{9}     The final responsibility for interpreting the New Mexico Constitution also rests with
this Court, “the ultimate arbiter[] of the law of New Mexico.” State ex rel. Serna v. Hodges,
1976-NMSC-033, ¶ 22, 89 N.M. 351, 552 P.2d 787, overruled on other grounds by State v.
Rondeau, 1976-NMSC-044, ¶ 9, 89 N.M. 408, 553 P.2d 688. In fulfilling that responsibility,
we review all questions of constitutional and statutory interpretation de novo. State v. Boyse,
2013-NMSC-024, ¶ 8, 303 P.3d 830. “[O]ur primary goal is to give effect to the intent of the
Legislature which proposed [the constitutional provision] and the voters of New Mexico who
approved it.” Block v. Vigil-Giron, 2004-NMSC-003, ¶ 4, 135 N.M. 24, 84 P.3d 72. And we
are guided by the principle that “[t]erms used in a [c]onstitution must be taken to mean what
they meant to the minds of the voters of the state when the provision was adopted.” Flaska
v. State, 1946-NMSC-035, ¶ 12, 51 N.M. 13, 177 P.2d 174 (internal quotation marks and
citation omitted).

B.     Historical Meaning of “Capital Offense” as a Crime That Is Punishable by
       Capital Punishment

{10} Since at least the late 1400s, the term “capital” has meant “[a]ffecting, or involving
loss of, the head or life,” or “[p]unishable by death.” See The Oxford English Dictionary vol.
II (2d ed. 1989) at 862; see also Black’s Law Dictionary (10th ed. 2014) at 250 (defining
“capital” as “[p]unishable by execution; involving the death penalty”). The term derives
from the Latin word “caput,” meaning head. Merriam-Webster’s Third New International
Dictionary of the English Language, Unabridged (1961) at 332. See Commonwealth ex rel.
Castanaro v. Manley, 60 Pa. D. & C. 194, 196 (Lackawanna Cty. 1947) (“The words,
[]‘capital offenses’, as used in the [Pennsylvania] Constitution clearly mean offenses for
which the death penalty may be imposed.”).

{11} This was the common understanding of capital punishment at the time New Mexico
became part of the United States and drafted its constitution to follow the lead of
Pennsylvania and most other states, where the capital offense exception to the right of bail
had become part of “almost every state constitution adopted after 1776.” June Carbone,
Seeing Through the Emperor’s New Clothes: Rediscovery of Basic Principles in the
Administration of Bail, 34 Syracuse L. Rev. 517, 531-32 (1983); Brown, 2014-NMSC-038,
¶¶ 19, 26.

                                              3
{12} A substantial majority of jurisdictions across the country addressing the same
constitutional interpretation issue accordingly have held that an offense is a nonbailable
capital offense only if it may be punished by imposition of the death penalty. See Martin v.
State, 517 P.2d 1389, 1394, 1397 (Alaska 1974) (noting that where the constitution
authorizes pretrial detention only for capital offenses, “a legislative enactment expressly
permitting the detention of persons [charged with noncapital offenses] without right to bail
would be unconstitutional unless a constitutional amendment were adopted”); In re Tarr, 508
P.2d 728, 729 (Ariz. 1973) (“The United States Supreme Court has abolished the death
penalty in statutes like Arizona’s . . . and has therefore abolished ‘capital offenses’ in
Arizona.”); Kendrick v. State, 24 S.W.2d 859, 860 (Ark. 1930) (“[T]he offense charged was
a felony, punishable only by imprisonment in the penitentiary, and the accused had the legal
right to give bond for his appearance.”); State v. Menillo, 268 A.2d 667, 668 (Conn. 1970)
(“But since the penalty for murder in the first degree could be death, a first-degree murder
indictment constitutes an indictment for an offense punishable by death, that is, a capital
offense.”); Adams v. State, 48 So. 219, 224 (Fla. 1908) (in banc) (“A ‘capital crime’ is one
for which the punishment of death is inflicted. The crime of murder in the second degree is
punished by imprisonment in the state prison for life, and is not a capital crime.”); Caesar
v. State, 57 S.E. 66, 67 (Ga. 1907) (“If under any circumstances the penalty of death can be
inflicted, the offense is capital . . . . If under no circumstances the death penalty can be
inflicted, the offense is not capital.”); State v. Jiminez, 456 P.2d 784, 788 (Idaho 1969)
(“[Because] murder in the second degree [is] a crime not punishable by death . . . , [the
statute], which provides that capital offenses are not bailable, could not operate
automatically to prevent the admission of appellant to bail.” (footnote omitted)); People ex
rel. Hemingway v. Elrod, 322 N.E.2d 837, 840 (Ill. 1975) (“[A] capital case is one in which
the death penalty may, but need not necessarily, be inflicted.”); State v. Christensen, 195
P.2d 592, 596 (Kan. 1948) (“‘Capital crime, felony or offense’ . . . do[es] not include an
offense in which death in no event can be inflicted.”); Duke v. Smith, 253 S.W.2d 242, 243
(Ky. Ct. App. 1952) (“The accused is entitled to bail as a matter of unqualified right when
charged with any criminal offense except one that may be punished by death[, and i]n a
capital offense he has such right unless the Commonwealth shall produce . . . evidence
sufficient to create great presumption of guilt.”); Fredette v. State, 428 A.2d 395, 403 (Me.
1981) (“[A]n offense is ‘capital’ only if it is currently punishable by death; it does not
remain ‘capital’ because at some previous time it had been punishable by death.”);
McLaughlin v. Warden of Baltimore City Jail, 298 A.2d 201, 201 (Md. Ct. Spec. App. 1973)
(“As Maryland law presently exists, there is no capital crime because the death penalty is not
mandatory.”); Commonwealth v. Ibrahim, 68 N.E. 231, 232 (Mass. 1903) (“A capital crime
is one punishable with the death of the offender.”); State v. Pett, 92 N.W.2d 205, 207 (Minn.
1958) (“Murder in the first degree is not a capital offense when it cannot be punished by
death.”); Ex parte Welsh, 162 S.W.2d 358, 359 (Mo. Ct. App. 1942) (“A capital offense is
one which is punishable—that is to say, liable to punishment—with death.”); Edinger v.
Metzger, 290 N.E.2d 577, 578 (Ohio Ct. App. 1972) (“A ‘capital offense’ has been
uniformly defined as one where death may be imposed.”); Commmonwealth v. Truesdale,
296 A.2d 829, 832 (Pa. 1972) (“[T]he constitutional phrase ‘capital offense’ is a definition
of a penalty, i.e., the death penalty, rather than a definition of the crime.”), superseded by

                                              4
constitutional amendment, Pa. Const. art. 1, § 14 (amended 1998); City of Sioux Falls v.
Marshall, 204 N.W. 999, 1001 (S.D. 1925) (“By virtue of our constitutional provision . . . ,
and since the abolition of capital punishment, bail before conviction is a matter of absolute
right in all cases.”); Butt v. State, 175 S.W. 529, 530 (Tenn. 1915) (“[I]n this state, it is
competent for . . . this court on appeal, to disregard the finding of mitigating circumstances
by the trial jury and to order the infliction of the death penalty. Hence there continues to be
involved a ‘capital offense’ within the meaning of the constitutional provision now under
consideration.”); Ex parte Contella, 485 S.W.2d 910, 912 (Tex. Crim. App. 1972)
(“[M]urder, when committed by a person under seventeen years of age, is not a capital
offense because the death penalty cannot be imposed in such cases.”); In re Perry, 19 Wis.
676, 676 (1865) (“[S]ince the abolition of capital punishment in this state, persons charged
with murder are in all cases bailable [under the Wisconsin constitutional provision, ‘All
persons shall, before conviction, be bailable . . . except for capital offenses when the proof
is evident or the presumption great.’]”); State v. Crocker, 40 P. 681, 685 (Wyo. 1895)
(“[Because ‘a]ll persons shall be bailable by sufficient sureties, except for capital offenses
when the proof is evident or the presumption great,’ [t]he right to furnish bail with sufficient
sureties . . . arises in favor of any person accused of crime, and before conviction, absolutely
and without exception in cases of all crimes not punishable with death.”).

{13} This view, that crimes are nonbailable capital offenses only when they carry the
possibility of imposition of the death penalty on conviction, has been referred to as the
penalty theory. See Roll v. Larson, 516 P.2d 1392, 1393 (Utah 1973). The penalty theory
rests on the reasoning that no amount of bail is likely to secure a defendant’s voluntary
appearance at a trial that may result in a death sentence. See State v. Johnson, 294 A.2d 245,
250 (N.J. 1972) (“In a choice between hazarding his life before a jury and forfeiting his or
his sureties’ property, the framers of the many State Constitutions felt that an accused would
probably prefer the latter. But when life was not at stake and consequently the strong
flight-urge was not present, the framers obviously regarded the right to bail as imperatively
present.”); Ex parte Dennis, 334 So. 2d 369, 371 (Miss. 1976) (“The prevailing reason for
denying bail in capital cases was that pretrial incarceration was necessary for the accused’s
appearance at trial since it was thought that an accused would forfeit his bond by flight rather
than risk death by a jury verdict.”).

C.      The Post-Furman Classification Theory

{14} In its opposition to Defendant’s appeal in this case, the State argues that a capital
offense is not necessarily one punishable by death but is instead a crime so categorically
severe that the Legislature may statutorily designate an offense as “capital” and place it in
a nonbailable constitutional capital offense category even if capital punishment for the
offense has been statutorily abolished. In support, the State asks us to join a minority of
jurisdictions that purportedly now follow what has been called a classification theory, citing
United States v. Martinez, 505 F. Supp. 2d 1024, 1027-29, 1033 (D.N.M. 2007); Tribe v.
District Court in & for County of Larimer, 593 P.2d 1369, 1370-71 (Colo. 1979) (en banc);
and Hudson v. McAdory, 268 So. 2d 916, 920-22 (Miss. 1972). The State argues that courts

                                               5
in California, Colorado, Nevada, Mississippi, Louisiana, Washington, Utah, Alabama,
Oklahoma, and West Virginia have adopted a classification theory and relies on a brief
summary statement to that effect in Tribe, 593 P.2d at 1370-71.

{15} But none of those cited cases addressed the issue before us, whether a legislature can
abolish capital punishment while still calling penitentiary-only crimes “capital” for the
purpose of denying bail under a capital offense exception to a constitutional guarantee of
pretrial release. In fact, neither Tribe nor Martinez involved a pretrial detention issue or any
constitutional interpretation at all.

{16} Martinez was a federal prosecution for a murder occurring in what is defined in 18
U.S.C. § 1151 (2006, 2012) as “Indian country,” and the nonconstitutional issue in the
opinion concerned the applicability of a federal statute, 18 U.S.C. § 3281 (1994), providing
that no statute of limitations would bar prosecution of “any offense punishable by death.”
See Martinez, 505 F. Supp. 2d at 1025-26. The defendant was indicted for first-degree
murder, which is statutorily punishable “by death or by imprisonment for life” under 18
U.S.C. § 1111(b) (1994). See Martinez, 505 F. Supp. 2d at 1025-26. The issue in Martinez
was whether an Indian tribe’s exercising its right under 18 U.S.C. § 3598 (1994) to opt out
of the federal death penalty made the federal first-degree murder statute no longer an offense
“punishable by death” for statute of limitations purposes. See Martinez, 505 F. Supp. 2d at
1026-27. Martinez cited with approval a line of federal authority holding that whether a
crime is considered punishable by death or is a capital offense “depends on whether the
death penalty may be imposed for the crime under the enabling statute, not on whether the
death penalty is in fact available for defendants in a particular case.” Id. at 1029 (internal
quotation marks and citation omitted). Because Congress had authorized death as a potential
sentence for first-degree murder, it had statutorily made the offense a capital offense
punishable by death for purposes of statutes of limitations. See id. at 1034.

{17} Tribe addressed the applicability of a provision of the Colorado Rules of Criminal
Procedure requiring that juries be sequestered during trial in a capital case, following judicial
invalidation of capital punishment statutorily prescribed for the first-degree murder crime
with which the defendant was charged. See 593 P.2d at 1370. The Colorado Supreme Court
clarified that the question of whether the crime was a capital case depended on whether “the
pertinent [s]tatute itself provided that [the] death penalty could be administered under the
facts alleged.” Id. at 1371. Because the Colorado statute still classified first-degree murder
as an offense for which capital punishment could be imposed, see Colo. Rev. Stat. § 18-1-
105(1)(a) (1979 Colo. Sess. Laws at 669), the court held that a prosecution for first-degree
murder was a capital case in which jurors had to be sequestered, see Tribe, 593 P.2d at 1370-
71.

{18} Our research reveals that no case in any jurisdiction, including those referenced in
either Martinez or Tribe, has held that a constitutional provision guaranteeing bail in all but
“capital offenses” will permit bail to be denied after a legislative abolition of capital
punishment for an offense, as has occurred in New Mexico. The cases referenced in Tribe

                                               6
dealt with defendants charged under statutes continuing to prescribe capital punishment on
their face after the actual imposition of capital punishment had been judicially barred in 1972
when the Eighth Amendment holding in Furman v. Georgia, 408 U.S. 238, 239 (1972),
effectively precluded imposition of the death penalty under all then-existing state capital
punishment statutes. Because the State’s position relies so heavily on the purported adoption
of a classification theory by ten states, we closely examine the law in each of those
jurisdictions.

1.     California

{19} People v. Anderson, 493 P.2d 880, 899 n.45 (Cal. 1972), superseded by constitutional
amendment, Cal. Const. art. I, § 27 (amended 1972, see 1972 Cal. Stat. at A-17), was cited
by Tribe, 593 P.2d at 1371, in support of the capital-offense classification theory. The first
expression in American jurisprudence of the theory appeared in a footnote in Anderson, 493
P.2d at 899 n.45. After holding that California’s death penalty statutes violated the cruel and
unusual punishment clause of the California Constitution, the California Supreme Court
added a brief footnote, without the citation of any precedent in California or any other
jurisdiction and without any further explanation:

                The issue of the right to bail in cases in which the law has heretofore
       provided for the death penalty has been raised for the first time by the People
       and amici curiae on petition for rehearing. Although this question was never
       an issue in this case, we deem it appropriate to note that article I, section 6,
       of the California Constitution and section 1270 of the Penal Code, dealing
       with the subject of bail, refer to a category of offenses for which the
       punishment of death could be imposed and bail should be denied under
       certain circumstances. The law thus determined the gravity of such offenses
       both for the purpose of fixing bail before trial and for imposing punishment
       after conviction. Those offenses, of course, remain the same but under the
       decision in this case punishment by death cannot constitutionally be exacted.
       The underlying gravity of those offenses endures and the determination of
       their gravity for the purpose of bail continues unaffected by this decision.
       Accordingly, to subserve such purpose and subject to our future
       consideration of this issue in an appropriate proceeding, we hold that they
       remain as offenses for which bail should be denied in conformity with article
       I, section 6, of the Constitution and Penal Code section 1270 when the proof
       of guilt is evident or the presumption thereof great.

Anderson, 493 P.2d at 899 & n.45.

{20} Subsequent developments explained the import of this cryptic footnote. Within
months after the decision in Anderson, the voters of California approved a constitutional
amendment to reinstate capital punishment and effectively supersede Anderson. See Strauss
v. Horton, 207 P.3d 48, 90 (Cal. 2009) (observing that the 1972 constitutional amendment

                                              7
restored capital punishment, “subject to legislative amendment or repeal by statute, initiative,
or referendum” (internal quotation marks and citation omitted)), abrogated on other
grounds, Obergefell v. Hodges, ___ U.S. ___, 135 S. Ct. 2584 (2015). In the forty-five years
since that state constitutional amendment reinstating the death penalty, California courts
have consistently interpreted the “capital crimes” provisions of the California
Constitution—see Cal. Const. art. I, § 12 (amended 1974, 1982, 1994); Cal. Const. art. I, §
28 (amended 1982, 2008)—to mean crimes which the legislature has considered so serious
as to permit imposition of capital punishment. Less than two years after Anderson was
decided, and after the California legislature reclassified offenses eligible for the death
penalty under the authority of the 1972 constitutional amendment, see Cal. Penal Code §
190.2 (1973 Cal. Stat. at 1297, 1299-1300), the California Supreme Court clarified its
Anderson footnote to explain that what makes an offense capital is statutory authorization
of the death penalty for its commission, see In re Boyle, 520 P.2d 723, 725 (Cal. 1974)
(explaining that “[n]othing we said in footnote 45 was intended to govern a situation in
which the Legislature acts to declare a new and different class of ‘capital offenses’”).

{21} Because the murder crimes with which the defendants in Boyle were charged were
statutorily punishable only by life imprisonment and not punishable by capital punishment
in the absence of a killing for hire or other statutory “special circumstances” of Cal. Penal
Code Section 190.2 (1973), the California Supreme Court held that the charged crimes could
not be considered “capital offenses” in the constitutional sense. Boyle, 520 P.2d at 724. As
the court noted, “[t]he constitutional provision does not itself define the term; it simply
withholds in such cases a constitutional right to bail, and impliedly grants to the Legislature
the power to implement that exception,” which the legislature did when it “delineated the
class of such cases by substantive provisions imposing the death penalty for specified
offenses.” Id. at 725.

{22} No California case has ever taken the position that the legislature may classify a non-
capital-punishment crime as capital in the constitutional sense and thereby justify denial of
pretrial release. In fact, post-Anderson cases have repeatedly emphasized that the reference
to capital crimes in the California Constitution applies to crimes which the legislature has
considered so serious as to permit imposition of capital punishment. See, e.g., People v.
Superior Court, 25 Cal. Rptr. 2d 38, 39 (Cal. Ct. App. 1993) (“It is well established a capital
offense is one which carries the maximum possible penalty of death.”); In re Bright, 17 Cal.
Rptr. 2d 105, 108 (Cal. Ct. App.1993) (“It is the statutory availability of the ultimate penalty
which renders the crime charged a capital offense.”).

{23} California lawmakers have demonstrated their awareness that the legislature is not
free to create constitutional capital offenses simply by statutorily categorizing non-capital-
punishment crimes as capital. In 1982, the legislature proposed and the voters adopted
amendments to the California Constitution to add categories of felonies other than capital
offenses for which bail could be denied, including violent crimes when a court finds that the
defendant’s release would create a likelihood of great bodily harm to others. Cal. Const. art.
1, § 12 (amended 1982). In 1994, Article 1, Section 12 was amended again to add sexual

                                               8
assaults to the list of offenses which could result in pretrial detention. Cal. Const. art. 1, §
12 (amended 1994). If California law had permitted the legislature to categorize any crime
as constitutionally eligible for pretrial detention simply by attaching a statutory capital label
to the crime, neither of those constitutional amendments would have been necessary.

{24} Despite the California Supreme Court’s repeated clarifications of its Anderson
dictum, footnote 45 took on a life of its own. It was replicated without further analysis in
judicial opinions elsewhere that were dealing with the consequences of judicial, and not
legislative, determinations that statutory provisions for capital punishment could not be
enforced. But an analysis of the law in those states confirms that those jurisdictions also
never permitted the legislature to abolish capital punishment for an offense while calling the
crime capital for purposes of denying an express constitutional guarantee of pretrial release
in noncapital cases.

2.      Colorado

{25} Within months of the decision in Anderson, the Colorado Supreme Court adopted
Anderson’s footnote 45 in a brief opinion following the court’s determination that the
Colorado capital punishment statute could not be constitutionally applied as a result of the
United States Supreme Court’s Furman opinion, rendering capital punishment statutes
unenforceable throughout the United States. People ex rel. Dunbar v. Dist. Court, 500 P.2d
358, 359 (Colo. 1972) (per curiam). At the time of the Dunbar opinion, the Colorado statutes
provided that murder could be punished by death. See Colo. Rev Stat. § 40-1-105 (1971
Colo. Sess. Laws at 390, 490) (prescribing death as the maximum penalty for a class 1
felony); Colo. Rev. Stat. § 40-3-102(3) (1971 Colo. Sess. Laws at 418, 490) (specifying first-
degree murder as a class 1 felony). Dunbar merely recited that murder remained a capital
offense for which bail could be denied under the Colorado Constitution. Dunbar, 500 P.2d
at 359; see Colo. Rev. Stat § 40-1-105(3)-(4) (1974 Colo. Sess. Laws at 251-52, 254)
(adding Subsection (4), which substituted life imprisonment for death as the maximum
penalty for a class 1 felony if the Colorado death penalty is held unconstitutional). Dunbar
did not address the issue before us. In fact, Colorado has never statutorily abolished capital
punishment in the years since Furman and Dunbar. See Colo. Rev. Stat. § 18-3-102(3)
(2000) (“Murder in the first degree is a class 1 felony.”); Colo. Rev. Stat. §
18-1.3-1201(1)(a) (2014) (“Upon conviction . . . of a class 1 felony, the trial court shall
conduct a separate sentencing hearing to determine whether the defendant should be
sentenced to death or life imprisonment.”).

{26} Following the judicial invalidation of Colorado’s capital punishment statute that led
to the Dunbar decision, Colorado amended its murder statute to continue imposition of
capital punishment. Colo. Rev. Stat § 39-11-103(5) (1974 Colo. Sess. Laws at 252-54). Both
before and after that amendment the legislature did not explicitly label the crime of murder
as a capital crime; instead, it made murder a capital offense by statutorily providing the
possibility of capital punishment for class 1 felonies. See Colo. Rev. Stat. § 40-2-3(a)-(c)
(1965 Colo. Sess. Laws at 502-04) (allowing the death penalty under the murder statute then-

                                               9
existing); Colo. Rev. Stat. §§ 40-1-105 and 40-3-102(3) (1971 Colo. Sess. Laws at 390, 418,
490) (promulgating a new Colorado Criminal Code that allowed for the death penalty for
class 1 felonies and designated first-degree murder as a class 1 felony); Colo. Rev Stat. § 18-
3-102(3) (2000) (providing, currently, that “[m]urder in the first degree is a class 1 felony”);
Colo. Rev. Stat. § 18-1.3-104(1)(c) (2016) (continuing, under this current penalty statute, to
allow the death penalty for class 1 felonies).

{27} No case in Colorado has ever held that the legislature could statutorily abolish the
possibility of capital punishment for an offense and still classify the offense as “capital” for
the purpose of denying the constitutional right to pretrial releases. When the legislature acted
to permit denial of bail for crimes other than offenses that statutorily authorized imposition
of the death penalty, it did not simply statutorily label those additional non-capital-
punishment offenses as some category of capital felony. Instead, the legislature submitted
to Colorado voters a constitutional amendment adding to the historical capital offenses
exception a list of other offenses for which bail could be denied.

{28} Prior to 1983, Article II, Section 19 of the Colorado Constitution provided that,
pending disposition of charges, “‘all persons shall be bailable by sufficient sureties except
for capital offenses, when the proof is evident or the presumption great.’” Corbett v.
Patterson, 272 F. Supp. 602, 608 (D. Colo. 1967) (quoting the Colorado Constitution). In
1982, that constitutional provision was repealed and reenacted, retaining the original bail
exception for capital offenses and adding exceptions for dangerousness and noncapital
violent crimes. See 1982 Colo. Sess. Laws 685-86. A 1994 constitutional amendment deleted
an exception not at issue here, left the rest of the 1982 changes intact, and added new
exceptions for postconviction bail. See 1994 Colo. Sess. Laws 2853-55.

{29} As was the case in California, if a simple statutory classification could make a non-
death-penalty-eligible crime a capital offense in the constitutional sense, no constitutional
amendment would ever have been necessary.

3.     Nevada

{30} In initially dealing with the aftermath of Furman, the Nevada Supreme Court adopted
the Anderson footnote in another brief opinion with no analysis, stating only, “We adopt the
California view and affirm the order of the trial court [denying release].” Jones v. Sheriff,
Washoe Cty., 509 P.2d 824, 824 (Nev. 1973) (per curiam). As in California and Colorado,
the Nevada statutes still facially authorized imposition of capital punishment for murder.
More important to our analysis, the Nevada Supreme Court explicitly reconsidered its
reliance on the Anderson footnote just a year later in St. Pierre v. Sheriff, Washoe Cty., 524
P.2d 1278 (Nev. 1974):

               The California Supreme Court recently reevaluated the Anderson
       rationale in [Boyle], after the California legislature (1) enacted a procedural
       statute “forbidding bail in capital cases in which the proof is evident or the

                                              10
        presumption great . . . and (2) delineated the class of such cases by
        substantive provisions imposing the death penalty for specified offenses.”

                ....

                The legislative prerogative to implement the bail provisions of [the
        Nevada] Constitution does not encompass inclusion of a non-capital offense
        as non-bailable; accordingly, we hold [the corresponding Nevada statute]
        unconstitutional. Only those persons charged with the newly designated
        capital offenses may now be denied bail, “when the proof is evident, or the
        presumption great.” Nev. Const. Art. 1, § 7.

St. Pierre, 524 P.2d at 1279-80 (first omission in original).

{31} Nevada, like California and Colorado, realized the need to amend its state
constitution to permit pretrial detention of defendants other than those charged with death-
penalty offenses. In 1980, Nevada voters approved a legislative proposal to amend the
Nevada Constitution, adding the category of “murders punishable by life imprisonment
without possibility of parole” as nonbailable. Nev. Const. art. 1, § 7.

4.      Mississippi

{32} Hudson, 268 So. 2d 916, does not support the characterization of Mississippi as a
classification-theory jurisdiction. In Hudson, another post-Furman case that quickly
followed the short-lived 1972 Anderson footnote, the Mississippi Supreme Court held that
so long as the legislature prescribed the death penalty for an offense, it would be considered
a capital offense for bail purposes. See Hudson, 268 So. 2d at 921-23 (“In order to retain the
constitutional plan for the designation of capital offenses, we hold that a capital case is any
case where the permissible punishment prescribed by the Legislature is death, even though
such penalty may not be inflicted since the decision of Furman.”).

{33} Four years later in Dennis, 334 So. 2d at 370, the Mississippi Supreme Court
addressed a situation strikingly similar to the one before us, involving an offense that was
once punishable by death but which as a result of a statutory change no longer could result
in capital punishment. Dennis explicitly held “that the legislature had no authority to amend
the constitution by redefining the term ‘capital offenses’ found in” the bail provisions of the
Mississippi Constitution, which had always been construed as crimes “which permitted the
death penalty.” Dennis, 334 So. 2d at 372-73 (holding that “the constitution can only be
modified by constitutional amendment”).

{34} The post-Furman statutory abolition of capital punishment for armed robbery meant
that armed robbery was no longer a capital offense within the meaning of the Mississippi
Constitution despite the fact the legislature still labeled it as a capital offense for statutory
classification purposes. See Dennis, 334 So. 2d at 373. Accordingly, Dennis held that a

                                               11
defendant charged with armed robbery after statutory abolition of capital punishment for the
offense was constitutionally entitled to bail. See id.

{35} Mississippi subsequently amended its constitution to supplement the capital offense
exception to the right to bail by authorizing pretrial detention in a number of non-capital-
punishment offenses. Miss. Const. art. 3, § 29 (amended 1987, 1995).

5.     Louisiana

{36} Tribe cited three Louisiana opinions in support of its statement that Louisiana had
adopted a classification theory for interpreting the constitutional meaning of capital offense.
See Tribe, 593 P.2d at 1371 n.3 (citing State v. Hunter, 306 So. 2d 710 (La. 1975); State v.
Flood, 269 So. 2d 212 (La. 1972), superseded by statute, La. Stat. Ann. §§ 14:30 and 14:30.1
(1973 La. Acts at 218-21); and State v. Holmes, 269 So. 2d 207 (La. 1972), superseded by
statute, La. Stat. Ann. §§ 14:30 and 14:30.1 (1973 La. Acts at 218-21)). Holmes and Flood
were companion cases that were issued on the same day addressing the statutory and
constitutional meaning of capital offenses following the Furman decision. Holmes dealt with
the term “capital offenses” in the context of a state constitutional right to a unanimous
twelve-person jury in capital cases, see 269 So. 2d at 209, and Flood focused on excluding
those charged with “capital offenses” from the constitutional right to bail, see 269 So. 2d at
214.

{37} Relying on the California Anderson footnote and the Colorado Dunbar opinion that
itself had relied on Anderson, a majority of the divided Louisiana Supreme Court stated that
it also agreed with a classification theory. Important to what the Louisiana court meant by
“classification of crimes” is its explanation that “when [the] legislature last acted with
respect to it, murder was, as it has ever been, a capital crime.” Flood, 269 So. 2d at 214
(observing that “the penalty is what made murder a capital offense”); see also Holmes, 269
So. 2d at 208 (explaining that “[t]he word ‘capital’ in criminal law has to do with the death
penalty”). The court emphasized the difference between a case where the “legislature
eliminated capital punishment” and cases like Flood and Holmes, where a judicial decision
had barred implementation of the statutory punishment. See Holmes, 269 So. 2d at 209; see
also Flood, 269 So. 2d at 214 (“Furman . . . does not destroy the system of classification of
crimes in Louisiana.”). The court therefore held that it would continue to treat offenses
statutorily prescribing capital punishment as capital offenses, “at least until the legislative
process has reorganized the criminal law and procedure in view of Furman.” Holmes, 269
So. 2d at 209.

{38} Following the decisions in Flood and Holmes, the Louisiana Legislature acted
quickly to amend some of its capital punishment statutes, dividing murder into two
classifications, first-degree with a mandatory death sentence and second-degree with a
sentence of life imprisonment. State v. Washington, 294 So. 2d 793, 793 (La. 1974). In
Washington, a trial judge had denied bail to a second-degree murder defendant on the basis
of the decisions in Flood and Holmes. See Washington, 294 So. 2d at 793. The Louisiana

                                              12
Supreme Court reversed, observing that at the time of those two earlier decisions the single
offense of murder had still been statutorily a capital offense but that as a result of the
amended statutes providing “no death penalty for [second-degree murder], bail must be
granted.” Id. at 794; cf. Hunter, 306 So. 2d at 712 (holding that a statutorily defined death
penalty offense committed during the period before the amended capital punishment statutes
were enacted should be treated as a capital offense for all purposes other than punishment).

{39} Several years later, the Louisiana Supreme Court decided another significant case on
the constitutional meaning of capital offense, State v. Polk, 376 So. 2d 151, 152 (La. 1979).
In Polk the defendant was denied bail based on the capital offense exception in a prosecution
for aggravated kidnapping, an offense which statutorily was subject to capital punishment
but which, because of judicial decisions, could not result in imposition of the death penalty.
See id. The Louisiana Legislature had not acted to revise its kidnapping statutes to bring
them into compliance with constitutional requirement over the course of three sessions that
had been convened since the statutes were judicially held to be unconstitutional. See id. at
153. The Louisiana Supreme Court made it clear that its temporary classification-theory
resolutions in Flood and Holmes had never been intended to be a permanent state of affairs:

               We did not intend by our holdings to permit the constitutional right
       of bail in non-capital crimes to be indefinitely curtailed by legislative
       inaction in re-classification or re-regulation in instances where the death
       penalty provided by a statute is judicially held to be unconstitutional, whether
       the inaction be through oversight or otherwise; nor did we intend to hold that
       the constitutional provision requiring bailability could be evaded by arbitrary
       legislative classification as capital of a crime for which constitutionally no
       death penalty may be imposed.

Polk, 376 So. 2d at 153 (footnote omitted). Polk held that because the legislature had not
promptly reformed its statutes to classify which crimes were constitutionally punishable by
death, the defendant was entitled to be released on bail for an offense that was statutorily
eligible but judicially ineligible for imposition of capital punishment. See id.

{40} More recently, in State v. Serigne, 232 So. 3d 1227 (La. 2017), the Louisiana
Supreme Court engaged in a retrospective review of its case law in this area:

               In cases that followed Furman, this court grappled with the
       implications of a constitutionally unenforceable death penalty that had not
       yet been repealed or replaced by the legislature. For example, in [Flood], the
       court found that murder remained classified as a capital offense for purpose
       of determining whether an accused is entitled to bail.

Serigne, 232 So. 3d at 1229 (emphasis omitted). The court noted that “Flood and Holmes
arose in a particularly unusual and volatile era of developing death penalty jurisprudence and
associated legislative responses” but that Louisiana now has “broadly rejected the prior

                                             13
‘capital classification’ jurisprudence,” making it clear that a case where a defendant does not
face the prospect of the death penalty is simply not a capital case. Serigne, 232 So. 3d at
1230-31.

6.     Washington

{41} State v. Haga, 504 P.2d 787 (Wash.1972) (en banc), clarified by State v. Anderson,
736 P.2d 661 (Wash. 1987) (en banc), has also been offered as support for the classification
theory. See Tribe, 593 P.2d at 1371 & n.5. The opposite appears to be true.

{42} Long before Haga was decided, the Washington Supreme Court interpreted its
constitution’s reference to “capital offense” to mean “not whether the death penalty must
necessarily be imposed, but whether it may be imposed” for a particular crime. Ex parte
Berry, 88 P.2d 427, 428 (Wash. 1939). Haga was a post-Furman case addressing the right
of a first-degree murder defendant to bail on appeal following judicial recognition in State
v. Baker, 501 P.2d 284, 284-85 (Wash. 1972) (en banc), that the Furman holding made
Washington’s statutory death penalty unenforceable. See Haga, 504 P.2d at 788.

{43} Citing the California Supreme Court Anderson opinion, 493 P.2d at 899 n.45, as
support, the Washington Supreme Court held that first-degree murder remained a capital
offense as that term was used in the bail provisions of Article 1, Section 20 of the
Washington Constitution. Haga, 504 P.2d at 788-89. But more illuminating than the brief
reference to the California Anderson case was the Washington Supreme Court’s approval
of the reasoning in its own precedent in Berry that what makes an offense capital is not
determined by whether capital punishment is to be imposed in a particular case but instead
“‘by the statutory penalty prescribed against its commission.’” Haga, 504 P.2d at 789
(quoting Berry, 88 P.2d at 433).

{44} If there remained any doubt about the Washington Supreme Court’s stance that the
legislative penalty, instead of the legislative label, is the determining factor in what makes
an offense capital in the constitutional sense, it was resolved in the Washington Supreme
Court’s subsequent clarification of Haga in its Anderson holding that whether a defendant
is charged with a capital offense in the constitutional sense “depends upon whether the
defendant committed a crime which could be punished with the death penalty.” Anderson,
736 P.2d 662-63.

{45} In 2010, Washington also amended its 1889 constitution to add to capital offenses
a second exception to the right to pretrial release: “Bail may be denied for offenses
punishable by the possibility of life in prison upon a showing by clear and convincing
evidence of a propensity for violence that creates a substantial likelihood of danger to the
community or any persons, subject to such limitations as shall be determined by the
legislature.” Wash. Const. art. I, § 20.

7.     Utah

                                              14
{46} Both State v. James, 512 P.2d 1031 (Utah 1973), and Roll, 516 P.2d 1392, addressed
the constitutional definition of capital offenses after judicial invalidation of the Utah death
penalty in the wake of Furman. See Tribe, 593 P.2d at 1371 & n.2.

{47} James focused on the Utah Constitution’s guarantee that a jury could consist of only
eight jurors “‘except in capital cases.’” James, 512 P.2d at 1032. Relying specifically on the
California Anderson decision, James stated that the theory related to “a category of offenses
for which the punishment of death might be imposed,” even where “punishment by death
cannot constitutionally be exacted” as a result of judicial decisions. 512 P.2d at 1033 & n.8
(citing cases from Colorado, Louisiana, and Washington). Accordingly, because the
defendant in James was charged with first-degree murder, an offense that had “been
classified as a capital crime by the legislature,” he was entitled to be tried before a twelve-
person jury. Id. at 1034.

{48} Roll, decided a few months after James, dealt with the meaning of the capital offense
exception to the right to bail in the Utah Constitution. See Roll, 516 P.2d at 1392. While Roll
endorsed a classification theory, it made clear that its understanding of that theory depended
on the legislature’s classifying an offense as capital by prescribing the possibility of capital
punishment:

               The “classification” theory proceeds on the concept that the
       constitution and statutes refer to a category of offenses for which the
       punishment of death might be imposed. The legislature determines the proper
       classification of a crime according to its gravity, and this classification
       endures, although punishment by death may not constitutionally be imposed.

Roll, 516 P.2d at 1393.

{49} In 1973, Utah amended the capital offense exception to the right to bail in Article I,
Section 8 of the Utah Constitution by adding additional circumstances in which bail could
be denied, in cases where a defendant is accused of committing any felony while released
on probation, parole, or bail for a previous felony offense. Scott v. Ryan, 548 P.2d 235, 236
(Utah 1976).

{50} In 1988, Article I, Section 8 was amended again to add the current provision, denying
bail for

       persons charged with any other crime, designated by statute as one for which
       bail may be denied, if there is substantial evidence to support the charge and
       the court finds by clear and convincing evidence that the person would
       constitute a substantial danger to any person or to the community or is likely
       to flee the jurisdiction of the court if released on bail.

Utah Const. art. I, § 8(1)(c); see State v. Kastanis, 848 P.2d 673, 674 (Utah 1993) (per

                                              15
curiam). The 1988 amendment thereby explicitly granted the legislature new constitutional
authority to statutorily designate non-capital-punishment crimes as nonbailable.

8.      Alabama

{51} Ex parte Bynum, 312 So. 2d 52 (Ala. 1975), was another interpretation of a capital
offense exception to the state constitutional right to bail decided as a result of Furman’s
invalidation of statutory capital punishment provisions. Bynum adopted the classification
theory expressed in several other jurisdictions’ post-Furman decisions and held that “[t]he
only effect of Furman was to eliminate the imposition of the death penalty as it was then
enforced, and not to eliminate the classification whereby crimes are categorized as capital
for purposes other than punishment.” Bynum, 312 So. 2d at 55.

{52} Bynum acknowledged established Alabama case law “interpret[ing] the term ‘capital
offense’ to mean offenses for which the death penalty may be imposed.” Id. (citing Lee v.
State, 13 So. 2d 583 (Ala. 1943), and Ex parte McCrary, 22 Ala. 65 (1853)). But Bynum
noted, “these opinions were not written in the context of Furman (which deals solely with
the matter of constitutionally permissible punishment), and their application to the
classification of capital offenses for the purposes of bail is not . . . decisive.” Bynum, 312 So.
2d at 55.

{53} After Furman was decided, the Alabama legislature amended its criminal statutes,
which continue to classify as capital offenses aggravated murders that are “punish[able] by
a sentence of death or life imprisonment without parole.” Ala. Code § 13A-5-39(1) (2016);
Ala. Code § 13A-5-40 (1981). No Alabama case has yet addressed the extent to which the
legislature may constitutionally classify a non-capital-punishment offense as a capital
offense, as that term is used in the Alabama Constitution.

9.      Oklahoma

{54} In re Kennedy, 512 P.2d 201, 203 (Okla. Crim. App. 1973), was also a post-Furman
case relying on California’s Anderson opinion to hold that the Furman decision “d[id] not
give rise to a right to bail previously excluded as a capital offense.” The court held that the
framers of the constitution and the legislature “did not intend bail to be denied on the basis
of the punishment to be imposed alone, but used the punishment, the death penalty, as a
method of characterizing those offenses in which the gravity was so great that bail should
be denied.” Kennedy, 512 P.2d at 203. The court then provided guidance on how the
legislature could constitutionally classify a crime as a capital offense ineligible for bail:

        Any new categorization of offenses invoking the possibility of the
        assessment of the death penalty in a particular case will be deemed to be a
        restatement by the legislature and reclassification of offenses of such a
        gravity to allow denial of bail when the probability is the accused will
        receive a life or death sentence.

                                               16
Id. at 203-04.

{55} As had occurred in a number of other states, Oklahoma supplemented its
constitution’s capital offenses exception in 1988 by adding categories of offenses where bail
could be denied to persons charged with “violent offenses, . . . offenses where the maximum
sentence may be life imprisonment or life imprisonment without parole, . . . felony offenses
where the person charged . . . has been convicted of two or more felony offenses,” and drug
crimes with potential sentences of at least ten years imprisonment. Okla. Const. art. II, § 8.
The Oklahoma bail statutes were amended to provide that all defendants are entitled to be
released on bail “in criminal cases where the offense is not punishable by death” and where
those new constitutional bail exception categories do not apply. See Okla. Stat. tit. 22, §
1101 (2006) (including Subsections (A), providing that “bail . . . shall be admitted upon all
arrests,” and (C), specifying the constitutional bail exception categories); see also Okla. Stat.
tit. 22, § 1101 (2004 Okla. Sess. Laws at 316-17) (including Subsection (A) but not (C)).

10.     West Virginia

{56} West Virginia law provides no support for a classification theory to interpret the
constitutional meaning of capital offenses. The West Virginia constitutional right to bail
contains no reference at all to capital offenses and instead, like the Eighth Amendment to the
United States Constitution, guarantees only that where bail is granted it may not be
excessive. See W. Va. Const. art. III, § 5 (“Excessive bail shall not be required, nor excessive
fines imposed, nor cruel and unusual punishment inflicted.”); United States v. Salerno, 481
U.S. 739, 752 (1987) (“The Eighth Amendment addresses pretrial release by providing
merely that ‘[e]xcessive bail shall not be required.’ This Clause, of course, says nothing
about whether bail shall be available at all.” (quoting the United States Constitution)
(alteration in original)).

{57} The West Virginia case cited in Tribe was neither a bail case nor a case involving the
relationship between a constitutional term and a statutory term; instead it dealt with the
application of a statute authorizing transfer of cases, which addressed statutorily categorized
capital offenses that were not statutorily subject to capital punishment, from juvenile court
to adult court. See Lycans v. Bordenkircher, 222 S.E.2d 14, 17-18 (W. Va. 1975), overruled
on other grounds, Thomas v. Leverette, 273 S.E.2d 264 (W. Va. 1980). West Virginia law
therefore provides no assistance in determining whether a legislature may statutorily expand
the scope of a constitutional term on a classification theory or any other theory.

11.     Overview of the classification-theory cases

{58} The preceding state-by-state analysis of the law in each of the purported
classification-theory states leads to several global conclusions. First, to the extent a
classification theory in any of those jurisdictions constituted a departure from the historical
interpretation of the constitutional term “capital offenses” in the context of bail rights, it was
a short-lived response to the jurisprudential uncertainty in the brief period between the

                                               17
Furman decision and the subsequent legislative designation of death penalty offenses in
reformed capital punishment statutes.

{59} Second, the classification-theory cases dealt only with the consequences of judicial
determinations that capital punishment statutes could not be enforced, not with legislative
abolition of capital punishment for an offense.

{60} And third, the manner in which legislatures were able to classify crimes as “capital
offenses” that would be subject to denial of bail was not simply by labeling crimes with the
word “capital” but by prescribing the possibility of imposing capital punishment, which
means the death penalty, for their commission.

{61} The crime with which Defendant is charged would not be a capital offense as defined
in the constitutions of any of the purported classification-theory jurisdictions because the
New Mexico Legislature itself has statutorily classified murder as a noncapital offense by
abolishing the possibility of capital punishment for its commission.

D.     As a Result of the 2009 Legislative Abolition of Capital Punishment, There Are
       Currently No New Mexico Capital Offenses for Which Bail May Be
       Categorically Denied Under Article II, Section 13

{62} Unlike some states, New Mexico never adopted a classification theory to respond
temporarily to judicial invalidation of the death penalty, and we are not called upon to
consider that kind of issue here. Instead, we are asked by the State to do something much
more unprecedented: to adopt an alternative classification theory by holding that the
Legislature itself can statutorily abolish any possibility of capital punishment for a crime
while still labeling the crime as a capital offense for which the constitutional right to bail
may be denied. We now address the considerations of principle and practicality that are
necessarily raised by this novel classification theory.

{63} We have been offered no standard by which a reviewing court could determine
whether a legislature has exceeded its constitutional limitations if the legislature were
deemed to have authority to label non-death-penalty crimes as capital offenses for which the
constitutional right to bail would not apply. Could the legislature label any offense a capital
offense simply because it thought the crime serious enough to justify denial of bail? How
many categories of capital offenses could a legislature create? Could it, for example,
legislate that all first- and second-degree felonies are categories of capital offenses? All
felonies? DWI or other misdemeanors? Could such a classification power depend on whether
and when the statutes provide that a non-death-eligible defendant would be eligible for
parole consideration? If the term were to apply to offenses for which statutes once authorized
the death penalty, would it apply to all former capital punishment crimes or just those that
existed at some particular point in history between adoption of the New Mexico Constitution
and repeal of the death penalty? See, e.g., Section 1151 (1887), C.L. 1897 at 356 (codifying
the territorial statute prescribing the death penalty for nonhomicidal train robbery,

                                              18
recompiled after statehood as NMSA 1915, § 1642 (1887), C.L. 1915 at 536, and repealed
by 1963 N.M. Laws, ch. 303 at 827); see also Arie W. Poldervaart, Black-Robed Justice 179,
181-83 (Arno Press ed. 1976) (1948) (describing the trial and hanging of train robber
Thomas “Black Jack” Ketchum); Territory v. Ketchum, 1901-NMSC-006, ¶¶ 2, 15, 10 N.M.
718, 65 P. 169 (affirming Ketchum’s sentence of death for an attempted train robbery in
which no one was killed).

{64} Any attempt to tie such a theoretical legislative classification authority to any guiding
standard other than a statutory capital punishment penalty would not only be ungrounded in
principle, it would be unworkable in practice. Without a firm defining reference like the only
obvious one—a textual statutory provision legislating the possibility of capital
punishment—there would be no articulable standard to guide either a legislature or a
reviewing court in interpreting the application of the constitutional right to bail in noncapital
cases.

{65} The lack of any law-based principled or practical standard for determining the
bounds of the “capital offenses” term in Article II, Section 13 of the New Mexico
Constitution, at least if we abandon the clear historical standard of the possible imposition
of the death penalty, is the fatal flaw in the proposed classification theory in this case. If the
Legislature were to be given the sweeping power to attach a capital label to any offense and
thereby justify denial of bail under the Bill of Rights to our Constitution, the Constitution
would itself no longer have any more meaning than the language of Lewis Carroll’s
Wonderland character, Humpty-Dumpty. Lewis Carroll, Through The Looking Glass 57
(Susan L. Rattner ed., Dover Publ’ns., Inc. 1999) (1872) (“‘When I use a word,’ Humpty
Dumpty said, in rather a scornful tone, ‘it means just what I choose it to mean—neither more
nor less.’”).

{66} We recognize that the continued statutory use of the capital felony categorization
after New Mexico’s statutory abolition of capital punishment has resulted in confusing
alternative uses of the “capital” adjective in New Mexico statutes and judicial opinions. The
State correctly cites a number of opinions filed after New Mexico abolished capital
punishment in which this Court has “continued to refer to first-degree murder as a capital
crime in cases where the defendant has been sentenced to life imprisonment.” See, e.g., State
v. Serna, 2013-NMSC-033, ¶ 33, 305 P.3d 936 (stating that “murder” is “a capital felony”);
State v. Dowling, 2011-NMSC-016, ¶ 8, 150 N.M. 110, 257 P.3d 930 (“First degree murder
is a capital felony.”). While those cases did not involve any interpretation of the
constitutional term “capital offenses,” we acknowledge that all concerned, including this
Court, should try to lessen any confusion in addressing the differing statutory and
constitutional uses of the word “capital.”

{67} The indiscriminate use of that term leads to confusion in applying the law. For
example, the Court of Appeals stated in State v. Segura, 2014-NMCA-037, ¶ 7, 321 P.3d
140, that “[u]nder Article II, Section 13 of the New Mexico Constitution, every accused,
except a person accused of first degree murder where the proof is evident or the presumption

                                               19
great, is entitled to bail.” But that statement was based on neither New Mexico precedent nor
the wording of the New Mexico Constitution. The Constitution does not say that bail may
be categorically denied in cases of first-degree murder; it says bail may be denied for persons
charged with capital offenses. Unlike some other states which have expanded the categorical
detention authority in their constitutions to include persons charged with crimes subject to
life sentence and other categories of crimes, New Mexico has never done so.

{68} This Court has never explicitly or implicitly held that nonbailable capital offenses
in Article II, Section 13 include crimes not statutorily punishable by capital punishment. To
permit any branch of government to redefine constitutional terms would violate the exclusive
power of the people to amend the Constitution. See Ferguson v. N.M. State Highway
Comm’n, 1982-NMCA-180, ¶ 6, 99 N.M. 194, 656 P.2d 244 (“The legislature’s plenary
authority is limited only by the state and federal constitutions.” (citing Daniels v. Watson,
1966-NMSC-011, 75 N.M. 661, 410 P.2d 193)); N.M. Const. art. XIX, § 1 (“An amendment
that is ratified by a majority of the electors . . . shall become part of this constitution.”). We
have no authority to preclude the Legislature’s use of the term “capital felony” or any other
form of words in classifying crimes for nonconstitutional purposes, but no branch of
government has the lawful authority to transform the intended meaning of constitutional
terms.

{69} As a result of this Court’s research conducted after initial briefing and oral argument,
we are unanimous in holding that the term “capital offenses” in Article II, Section 13 of the
current New Mexico Constitution means, as it always has, offenses for which a statute
authorizes imposition of the death penalty. To the extent that Segura or any other cases may
be read to increase the offenses for which bail may be categorically denied under the capital
offenses provision of Article II, Section 13 of the New Mexico Constitution, those cases are
overruled.

{70} There being no death penalty statutorily authorized for any crimes committed on or
after July 1, 2009, following legislative repeal of the last vestiges of capital punishment for
offenses committed on or after that date, and Defendant having been charged with
committing his offense after that date, the detention order based on the capital offenses
exception must be reversed. Because Defendant is not detainable under the capital offenses
provision, there is no need to reach any further issues related to procedures for that
provision’s implementation.

E.      Pretrial Detention May Be Ordered in Compliance with the New Detention-for-
        Dangerousness Authority in Article II, Section 13

{71} Our holding does not mean the district court lacks authority to deny pretrial release
of a defendant charged with a crime that is no longer a capital offense. In fact, our district
courts now have a much broader evidence-based detention authority applicable in both
capital and noncapital felony offenses. In 2016, the Legislature proposed and the voters of
New Mexico approved an amendment to the bail rights in Article II, Section 13 of the New

                                               20
Mexico Constitution, authorizing pretrial detention of dangerous defendants where “no
release conditions will reasonably protect the safety of any other person or the community.”
N.M. Const. art. II, § 13 (amendment effective November 8, 2016); see Torrez v. Whitaker,
2018-NMSC-005, ¶ 72, 410 P.3d 201.

{72} The State’s motion to detain Defendant in this case was based on the new
constitutional authority instead of the older capital offenses provision relied on sua sponte
by the district court. Following oral argument in this case, we remanded this matter for
consideration of the State’s unaddressed request. Because we have no ruling or evidentiary
record on which to review whether Defendant should have been detained under the new
authority, nothing in this opinion is intended to prejudge those issues.

III.   CONCLUSION

{73} For the reasons stated herein, we confirm our previous order holding that first-degree
murder is not currently a constitutionally defined capital offense in New Mexico that would
authorize a judge to categorically deny release pending trial, and we also hold that any
outright denial of pretrial release for a defendant charged with a noncapital offense must be
based on the new evidence-based provisions of Article II, Section 13 of the New Mexico
Constitution.

{74}   IT IS SO ORDERED.

                                              ____________________________________
                                              CHARLES W. DANIELS, Justice

WE CONCUR:

___________________________________
JUDITH K. NAKAMURA, Chief Justice

___________________________________
PETRA JIMENEZ MAES, Justice

___________________________________
BARBARA J. VIGIL, Justice

___________________________________
EDWARD L. CHÁVEZ, Justice, retired,
sitting by designation




                                             21
